AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
DELTA
AIR LINES, INC.
The
name
of the Corporation is Delta Air Lines, Inc. (the “Corporation”).
The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on March 16, 1967, and the original name of
the
Corporation was Delaware Air Lines, Inc. In accordance with Sections 242,
245
and 303 of the Delaware General Corporation Law of the State of Delaware
(the
“Delaware
General Corporation Law”),
the
original Certificate of Incorporation of the Corporation is hereby amended
and
restated in its entirety to read as follows:
ARTICLE
ONE
Name
The
name
of the Corporation is Delta Air Lines, Inc.
ARTICLE
TWO
Registered
Office
The
address of the Corporation’s registered office in the State of Delaware is 2711
Centerville Road, Suite 400, in the City of Wilmington, 19808, County of
New
Castle. The name of its registered agent at such address is Corporation Service
Company.
ARTICLE
THREE
Purpose
The
nature of the business of the Corporation and the objects or purposes to
be
transacted, promoted or carried on by it are to engage in any lawful act
or
activity for which corporations may be organized under the Delaware General
Corporation Law.
ARTICLE
FOUR
Capital
Stock
Section
1.
Authorized
Shares.
The
total number of shares of all classes of stock that the Corporation is
authorized to issue is 2,000,000,000 consisting of 1,500,000,000 shares of
common stock with a par value of $0.0001 per share and 500,000,000 shares
of
preferred stock with a par value of $0.0001 per share.
Section
2.
Common
Stock.
(a) Except
as
otherwise provided by the Delaware General Corporation Law or this Amended
and
Restated Certificate of Incorporation, the holders of common stock, subject
to
the rights of holders of any series of preferred stock, shall share ratably
in
all dividends, as may from time to time be declared by the Board of Directors
of
the Corporation in respect of the common stock out of funds legally available
for the payment thereof and payable in cash, stock or otherwise, and in all
other distributions (including, without limitation, the dissolution, liquidation
and winding up of the Corporation), whether in respect of liquidation or
dissolution (voluntary or involuntary) or otherwise, after payment of all
liabilities and liquidation preference on any outstanding preferred
stock.
(b) Except
as
otherwise provided by the Delaware General Corporation Law or this Amended
and Restated Certificate of Incorporation and
subject to the rights of holders of any series of preferred stock, all of
the
voting power of the stockholders of the Corporation shall be vested in the
holders of the common stock, and each holder of common stock shall have one
vote
for each share held by such holder on all matters voted upon by the stockholders
of the Corporation.
Section
3.
Preferred
Stock.
The
preferred stock may be issued in one or more series, and the Board of Directors
of the Corporation is expressly authorized (i) to fix the descriptions, powers
(including voting powers), preferences, rights, qualifications, limitations,
and
restrictions with respect to any series of preferred stock and (ii) to specify
the number of shares of any series of preferred stock.
Section
4.
Preemptive
Rights.
Except
as otherwise provided in this Amended
and Restated Certificate of Incorporation, no holder of any class or series
of
stock of the Corporation shall have any preemptive rights (as such) with
respect
to any class or series of stock or any other capital stock of the Corporation,
or to any obligations convertible (directly or indirectly) into capital stock
of
the Corporation, whether now or hereafter authorized.
ARTICLE
FIVE
Bylaws
In
furtherance and not in limitation of the powers conferred by the laws of
the
State of Delaware, the Board of Directors of the Corporation is expressly
authorized to make, alter, or repeal the bylaws of the Corporation.
ARTICLE
SIX
Directors
Section
1. Number
and Term of Office.
(a) The
business and affairs of the Corporation shall be managed by or under the
direction of a Board of Directors consisting of not less than five (5) nor
more
than fifteen (15) directors, 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. For purposes of this
Certificate, “Whole
Board”
shall
mean the total number of directors of the Corporation, as
set by
the Board of Directors pursuant to Section 1(a), which
the
Corporation would have if there were no vacancies.
(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. No
Written Ballot.
Elections of directors need not be by written ballot unless the bylaws of
the
Corporation shall so provide.
ARTICLE
SEVEN
Limitation
of Liability; Indemnification
Section
1.
Limitation
of Liability.
To the
fullest extent permitted by Delaware law, as amended or interpreted, no director
of this Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any repeal or modification of the provisions of this Article Seven by the
stockholders of the Corporation shall not adversely affect any right or
protection of any director existing at the time of such repeal or modification.
Section
2.
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, 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
3.
Advancement
of 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 Seven or otherwise. Notwithstanding
anything to the contrary herein, 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
4.
Not
Exclusive Remedy.
The
rights to indemnification and to the advancement of Expenses conferred on
any
Indemnitee in this Article Seven shall not be exclusive of any other rights
that
such Indemnitee may have or hereafter acquire under
any
statute, provision of this Amended and Restated Certificate of Incorporation,
provision of the bylaws of the Corporation, agreement, vote of stockholders
or
disinterested directors, or otherwise.
Section
5.
Contract
Rights.
The
rights conferred upon Indemnitees in this Article Seven 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.
ARTICLE
EIGHT
Stockholder
Action
Any
action required or permitted to be taken by the stockholders of the Corporation
may be effected at a duly called annual or special meeting of stockholders
of
the Corporation or without a meeting, without prior notice and without a
vote,
if a consent or consents in writing or in electronic transmission or
transmissions, setting forth the actions so taken, shall be executed by all
of
the holders of outstanding stock that would be entitled to vote on such action
at a properly called meeting.
ARTICLE
NINE
Amendment
of Certificate of Incorporation
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE
TEN
Non-Voting
Securities
The
Corporation shall not issue any class of non-voting equity securities until
and
unless a majority of the Board of Directors of the Corporation determines
that
it is no longer in the best interests of the Corporation for such
prohibition to be effective. The Corporation shall publicly
disclose such determination within a reasonable time after any such
determination.
ARTICLE
ELEVEN
Limit
on Voting Power
Section
1.
Non-Citizen
Voting Limitation.
All (i)
capital stock of, or other equity interests in, the Corporation, (ii) securities
convertible into or exchangeable for shares of capital stock, voting securities
or other equity interests in the Corporation, and (iii) options, warrants
or
other rights to acquire the securities described in clauses (i) and (ii),
whether fixed or contingent, matured or unmatured, contractual, legal, equitable
or otherwise (collectively, “Equity
Securities”)
shall
be subject to the following limitations:
(a) Non-Citizen
Voting Limitation. In no event shall the total number of shares of Equity
Securities held by all Persons (as defined below) who fail to qualify as
a
“citizen of the United States,” as the term is used in Section 40102(a)(15) of
Title 49 of the United States Code, in any similar legislation of the United
States enacted in substitution or replacement therefor, and as interpreted
by
the Department of Transportation (a “U.S.
Citizen”),
be
entitled to be more than 24.9% (or such other maximum percentage as such
Section or substitute or replacement legislation shall hereafter provide)
of the aggregate votes of all outstanding Equity Securities (the “Cap
Amount”).
In
the event the total number of Equity Securities held by Persons who fail
to
qualify as a U.S. Citizen would otherwise entitle such holders to vote more
than
the Cap Amount, then the number of votes such holders shall be entitled to
vote
with respect to all Equity Securities held by such holders shall be reduced
by
such amount such that the total number of votes such holders of Equity
Securities shall be entitled to vote shall equal the Cap Amount.
(b) Allocation
of
Cap Amounts. The restrictions imposed by the Cap Amount shall be applied
pro
rata among the holders of Equity Securities who fail to qualify as U.S. Citizens
based on the number of votes to which the underlying Equity Securities are
entitled.
Section
2.
Legends.
Each
certificate, notice or other representative document for Equity Securities
(including each such certificate, notice or representative document for Equity
Securities issued upon any permitted transfer of Equity Securities) shall
contain a legend in substantially the following form:
“The
[type of Equity Securities] represented by this
[certificate/notice/representative document] are subject to voting restrictions
with respect to [shares/warrants, etc.] held by persons or entities that
fail to
qualify as “citizens of the United States” as the term is defined used in
Section 40102(a)(15) of Title 49 of the United States Code. Such
voting restrictions are contained in the Amended and Restated Certificate
of
Incorporation of Delta Air Lines, Inc., as the same may be amended or restated
from time to time. A complete and correct copy of the Amended and Restated
Certificate shall be furnished free of charge to the holder of such shares
of
[type of Equity Securities] upon written request to the Secretary of the
Corporation.”
Section
3.
Beneficial
Ownership Inquiry.
(a) 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 any person or entity of any nature whatsoever,
specifically including an individual,
corporation, limited liability company, partnership, trust or other entity
(a
“Person”)
that
is a holder of record of Equity Securities or that the Corporation knows
to
have, or has reasonable cause to believe has, Beneficial
Ownership of
Equity
Securities 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:
(i)
all
Equity Securities as to which such Person has record ownership or Beneficial
Ownership are owned and controlled only by U.S. Citizens; or
(ii)
the
number and class or series of Equity Securities owned of record or that are
Beneficially Owned by such Person that are owned or controlled by Persons
who
are not U.S. Citizens are as set forth in such certification.
“Beneficial
Ownership”
and
“Beneficially
Owned”
as
used
herein refers to beneficial ownership as defined in Rule 13d-3 (without regard
to the 60-day provision in paragraph (d)(l)(i) thereof) under the United
States
Securities Exchange Act of 1934, as amended (the “1934
Act”).
(b) With
respect
to any Equity Securities identified by such Person in response to Section
3(a)(ii) of this Article Eleven, 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 Eleven.
Section
4.
Board
Authority.
A
majority of the Board of Directors shall have the exclusive power to determine
all matters necessary to determine compliance with this Article Eleven, and
the
good faith determination of a majority of the Board of Directors on such
matters
shall be conclusive and binding for all the purposes of this Article
Eleven.
ARTICLE
TWELVE
Ownership
Limit
Section
1.
Certain
Definitions.
For
purposes of this Article Twelve, the following terms shall have the meanings
indicated:
“affiliate”
and
“associate”
shall
have the meanings set forth in Rule 12b-2 under the 1934 Act;
“Code”
means
the Internal Revenue Code of 1986, as amended;
“Entity”
means
an “entity” as defined in Treasury Regulation § 1.382-3(a);
“Expiration
Date”
means
April 30, 2009, unless extended in accordance with Section 2(c) of this Article
Twelve;
“Five-Percent
Stockholder”
means
an individual or Entity whose Ownership Interest Percentage is greater than
or
equal to 5%;
“Investment
Company”
means
an investment company registered under the Investment Company Act of
1940;
“Ownership
Interest Percentage”
means,
as of any determination date, the percentage of the Corporation’s issued and
outstanding Stock (not including treasury shares or shares subject to vesting)
that an individual or Entity would be treated as owning for purposes of Section
382 of the Code, applying the following rules: (i) in the event that such
individual or Entity, or any affiliate of such individual or Entity, owns
or is
party to an “option” (within the meaning of Treasury Regulation § 1.382-4) with
respect to Stock (including, for the avoidance of doubt, any cash-settled
derivative contract that gives such individual or Entity a “long” exposure with
respect to Stock), such individual, Entity or affiliate should be treated
as
owning an amount of Stock equal to the number of shares referenced by such
“option” and (ii) for purposes of applying Treasury Regulation § 1.382-2T(k)(2),
the Corporation shall be treated as having “actual knowledge” of the beneficial
ownership of all outstanding shares of Stock that would be attributed to
any
such individual or Entity;
“PBGC”
means
Pension Benefit Guaranty Corporation or any successor by statute
thereto;
“Prohibited
Transfer”
means
any purported transfer of Stock to the extent that such transfer is prohibited
under this Article Twelve;
“Related
Party Request”
means,
with respect to any request, a request to approve a proposed transfer in
which
the proposed transferor or the proposed transferee is, with respect to such
request, a proposed transferor, a proposed transferee or an affiliate of
either;
“Stock”
means
the 1,500,000,000 shares of common stock of the Corporation authorized pursuant
to this Certificate of Incorporation;
“Tax
Benefit”
means
the net operating loss carryovers, capital loss carryovers, general business
credit carryovers, alternative minimum tax credit carryovers and foreign
tax
credit carryovers, as well as any potential loss or deduction attributable
to an
existing “net unrealized built-in loss” within the meaning of Section 382 of the
Code, of the Corporation or any direct or indirect subsidiary thereof; and
“transfer”
refers
to any means of conveying record, beneficial or tax ownership (applying,
in the
case of tax ownership, applicable attribution rules for purposes of Section
382
of the Code) of Stock, whether such means is direct or indirect, voluntary
or
involuntary, and “transferee”
means
any Person to whom any such security is transferred.
Section
2.
Transfer
Restrictions.
Solely
for the purpose of permitting the utilization of the Tax Benefits to which
the
Corporation (or any other member of the consolidated group of which the
Corporation is common parent for federal income tax purposes) is or may be
entitled pursuant to the Code and the regulations thereunder, the following
restrictions shall apply until the Expiration Date, unless the Board of
Directors has waived such restrictions in respect of all transfers in accordance
with Section 7 below:
(a) From
and
after April 30, 2007, except as otherwise provided in this subparagraph (a),
no
individual or Entity other than the Corporation or the PBGC shall, except
as
provided in Section 3(a) below, transfer to any individual or Entity any
direct
or indirect interest in any Stock to the extent that such transfer, if
effective, would cause the Ownership Interest Percentage of the transferee
or
any other Entity or individual to increase to 4.95 percent (4.95%) or above,
or
from 4.95% or
above
to a greater Ownership Interest Percentage;
provided,
however,
that if
such Stock would be beneficially owned by an Investment Company following
such
transfer, such transfer shall not be prohibited unless the Entity or individual
whose Ownership Interest Percentage would so increase is a beneficial owner
of
such Stock following such transfer. Nothing in this Article Twelve shall
preclude the settlement of any transaction with respect to the Stock entered
into through the facilities of the New York Stock Exchange, Inc. or any other
national securities exchange; provided,
however,
that
the securities involved in such transaction, and the Purported Acquiror (as
defined below) thereof, shall remain subject to the provisions of this Article
Twelve in respect of such transaction. Unless a transferor has actual knowledge
that a transfer by it is prohibited by this subparagraph (a), i)
such
transferor shall have no liability whatsoever to the Corporation in respect
of
any losses or damages suffered by the Corporation as a result of such transfer
and the Corporation shall have no cause of action or rights against such
transferor in respect of such losses or damages, ii)
such
transferor shall have no liability whatsoever to the respective transferee
in
respect of any losses or damages suffered by such transferee by virtue of
the
operation of this Article Twelve and iii)
such
transferee shall have no cause of action or rights against the transferor
in
respect of such losses or damages, including, without limitation, for breach
of
warranty of the transferor implied by applicable law as to the effectiveness
and
rightfulness of the transfer.
(b) From
and
after April 30, 2007, except as otherwise provided in this subparagraph (b),
no
Five-Percent Stockholder shall, except as provided in Section 3(b) below,
transfer to any individual or Entity any direct or indirect interest in any
Stock owned by such Five-Percent Stockholder without the prior approval of
the
Board of Directors. Nothing in this Article Twelve shall preclude the settlement
of any transaction with respect to the Stock entered into through the facilities
of the New York Stock Exchange, Inc. or any other national securities exchange;
provided,
however,
that
the transferor of Stock in violation of the preceding sentence shall remain
subject to the provisions of this Article Twelve in respect of such transaction
and liable to the Corporation for any damages incurred as a result of such
transfer. Unless a transferee has actual knowledge that a transfer to it
is
prohibited by this subparagraph (b), such transferee shall
have
no
liability whatsoever to the Corporation or such Five-Percent Stockholder
in
respect of any losses or damages suffered by the Corporation or such
Five-Percent Stockholder as a result of such transfer and neither the
Corporation nor such Five-Percent Stockholder shall have any cause of action
or
rights against such transferee in respect of such losses or damages.
Notwithstanding the foregoing, the transfer restrictions described in this
subparagraph (b) shall not apply to the transfer of any direct or indirect
interest in any Stock by the PBGC, the Delta Family-Care Savings Plan or
any
other qualified plan for the employees of the Corporation or any of its
subsidiaries.
(c) The
Expiration Date is subject to extension for up to three (3) additional years
(i.e.,
until
April 30, 2012) if the Board of Directors determines in its reasonable
discretion that the extension of the transfer restrictions provided in
subparagraphs (a) and (b) of this Section 2 is necessary to preserve the
value
of the Tax Benefits to which the Corporation (or any other member of the
consolidated group of which the Corporation is common parent for federal
income
tax purposes) is or may be entitled pursuant to the Code and the regulations
thereunder.
Section
3.
Permitted
Transfers.
(a) Any
transfer of Stock that would otherwise be prohibited pursuant to Section
2(a) of
this Article Twelve shall nonetheless be permitted if iv)
prior to
such transfer being consummated (or, in the case of an involuntary transfer,
as
soon as practicable after the transaction is consummated), the Board of
Directors, in its sole discretion, approves the transfer (such approval may
relate to a transfer or series of identified transfers), v)
such
transfer is pursuant to any transaction, including, but not limited to, a
merger
or consolidation, in which all holders of Stock receive, or are offered the
same
opportunity to receive, cash or other consideration for all such Stock, and
upon
the consummation of which the acquiror will own at least a majority of the
outstanding shares of Stock or vi)
such
transfer is a transfer by the Corporation to an underwriter for distribution
in
a public offering; provided,
however,
that
transfers by such underwriter to purchasers in such offering remain subject
to
this Article Twelve. In determining whether to approve a proposed transfer
pursuant to (i)
of this
subparagraph (a), the Board of Directors may, in its discretion, require
(at the
expense of the transferor and/or transferee) an opinion of counsel selected
by
the Board of Directors that the transfer will not result in the application
of
any limitation pursuant to Section 382 of the Code on the use of the Tax
Benefits.
(b) Any
transfer of Stock that would otherwise be prohibited pursuant to Section
2(b) of
this Article Twelve shall nonetheless be permitted if vii)
prior to
such transfer being consummated (or, in the case of an involuntary transfer,
as
soon as practicable after the transaction is consummated), the Board of
Directors, in its discretion, approves the transfer (such approval may relate
to
a transfer or series of identified transfers) or viii)
such
transfer is pursuant to any transaction, including, but not limited to, a
merger
or consolidation, in which all holders of Stock receive, or are offered the
same
opportunity to receive, cash or other consideration for all such Stock, and
upon
the consummation of which the acquiror will own at least a majority of the
outstanding shares of Stock. In determining whether to approve a proposed
transfer pursuant to (i)
of this
subparagraph (b),
the
Board of Directors may, in its discretion, require (at the expense of the
transferor and/or transferee) an opinion of counsel selected by the Board
of
Directors that the transfer will not result in the application of any limitation
pursuant to Section
382
of
the Code on the use of the Tax Benefits. In the case of a proposed transfer
by a
Five-Percent Stockholder pursuant to this subparagraph (b),
the
Board of Directors will not unreasonably withhold approval of a proposed
transfer that is structured in a manner that the Board of Directors determines,
in its reasonable judgment, minimizes the “owner shift” required to be taken
into account for purposes of Section 382 of the Code as a result of such
transfer and any subsequent transfers by the transferor and its
affiliates.
In
assessing whether proposed transfers are so structured, the Board of Directors
will apply the Treasury Regulations under Section 382 of the Code, including
but
not limited to Treasury Regulations Sections 1.382-2T(g)(5) and 1.382-2T(k).
For
the avoidance of doubt, the Board of Directors may withhold approval of any
proposed transfer that it determines will result in a material risk that
any
limitation pursuant to Section 382 of the Code will be imposed on the
utilization of the Tax Benefits.
(c) The
Board
of Directors may exercise the authority granted by this Section 3 through
duly
authorized officers or agents of the Corporation. The Board of Directors
may
establish a committee to determine whether to approve a proposed transfer
or for
any other purpose relating to this Article Twelve. As a condition to the
Corporation’s consideration of a request to approve a proposed transfer, the
Board of Directors may require the transferor and/or transferee to reimburse
or
agree to reimburse the Corporation, on demand, for all costs and expenses
incurred by the Corporation with respect to such proposed transfer
(“Transfer
Costs”),
including, without limitation, the Corporation’s costs and expenses incurred in
determining whether to authorize such proposed transfer.
Section
4.
Treatment
of Prohibited Transfers.
Unless
the transfer is permitted as provided in Section 3 of this Article Twelve,
any
attempted transfer of Stock in excess of the Stock that could be transferred
to
the transferee without restriction under Section 2(a) of this Article Twelve
shall not be effective to transfer ownership of such excess Stock (the
“Prohibited
Shares”)
to the
purported acquiror thereof (the “Purported
Acquiror”),
who
shall not be entitled to any rights as a shareholder of the Corporation with
respect to such Prohibited Shares (including, without limitation, the right
to
vote or to receive dividends with respect thereto). For
the
sake of clarity, if the PBGC, the Delta Family-Care Savings Plan or any other
qualified plan for the employees of the Corporation or any of its subsidiaries
transfers, directly or indirectly, any such Prohibited Shares, the PBGC,
the
Delta Family-Care Savings Plan or such qualified plan, as the case may be,
shall
not be required to disgorge, and shall be permitted to retain for its own
account, any proceeds of such transfer, and shall have no further rights,
responsibilities, obligations or liabilities with respect to such Prohibited
Shares.
(a) Upon
demand by the Corporation, the Purported Acquiror shall transfer any certificate
or other evidence of purported ownership of Prohibited Shares within the
Purported Acquiror’s possession or control, along with any dividends or other
distributions paid by the Corporation with respect to any Prohibited Shares
that
were received by the Purported Acquiror (the “Prohibited
Distributions”),
to
such Person as the Corporation shall designate to act as transfer agent for
such
Prohibited Shares (the “Agent”).
If
the Purported Acquiror has sold any Prohibited Shares to an unrelated party
in
an arm’s-length transaction after purportedly acquiring them, the Purported
Acquiror shall be deemed to have sold such Prohibited Shares for the Agent,
and
in lieu of transferring such Prohibited Shares (and Prohibited Distributions
with respect thereto) to the Agent shall transfer to the Agent any such
Prohibited Distributions and the
proceeds
of such sale (the “Resale
Proceeds”)
except
to the extent that the Agent grants written permission to the Purported Acquiror
to retain a portion of such Resale Proceeds not exceeding the amount that
would
have been payable by the Agent to the Purported Acquiror pursuant to
subparagraph (b)
below if
such Prohibited Shares had been sold by the Agent rather than by the Purported
Acquiror. Any purported transfer of Prohibited Shares by the Purported Acquiror
other than a transfer described in one of the first two sentences of this
subparagraph (a)
shall
not be effective to transfer any ownership of such Prohibited
Shares.
(b) The
Agent
shall sell in one or more arm’s-length transactions (through the New York Stock
Exchange, if possible) any Prohibited Shares transferred to the Agent by
the
Purported Acquiror, and the proceeds of such sale (the “Sales
Proceeds”),
or
the Resale Proceeds, if applicable, shall be used to pay the expenses of
the
Agent in connection with its duties under this Section 4 with respect to
such
Prohibited Shares, and any excess shall be allocated to the Purported Acquiror
up to the following amount: ix)
where
applicable, the purported purchase price paid or value of consideration
surrendered by the Purported Acquiror for such Prohibited Shares, and
x)
where
the purported transfer of Prohibited Shares to the Purported Acquiror was
by
gift, inheritance, or any similar purported transfer, the fair market value
(as
determined in good faith by the Board of Directors) of such Prohibited Shares
at
the time of such purported transfer. Subject to the succeeding provisions
of
this subparagraph, any Resale Proceeds or Sales Proceeds in excess of the
amount
allocable to the Purported Acquiror pursuant to the preceding sentence, together
with any Prohibited Distributions, shall be transferred to an entity described
in Section 501(c)(3) of the Code and selected by the Board of Directors or
its
designee; provided,
however, that
if
the Prohibited Shares (including any Prohibited Shares arising from a previous
Prohibited Transfer not sold by the Agent in a prior sale or sales), represent
a
4.95% or greater Ownership Interest Percentage, then any such remaining amounts
to the extent attributable to the disposition of the portion of such Prohibited
Shares exceeding a 4.94% Ownership Interest Percentage shall be paid to two
or
more organizations qualifying under Section 501(c)(3) selected by the Board
of
Directors. In no event shall any such amounts described in the preceding
sentence inure to the benefit of the Corporation or the Agent, but such amounts
may be used to cover expenses incurred by the Agent in connection with its
duties under this paragraph (b)
with
respect to the related Prohibited Shares. Notwithstanding anything in this
Article Twelve to the contrary, the Corporation shall at all times be entitled
to make application to any court of equitable jurisdiction within the State
of
Delaware for an adjudication of the respective rights and interests of any
Person in and to any Sale Proceeds, Resale Proceeds and Prohibited Distributions
pursuant to this Article Twelve and applicable law and for leave to pay such
amounts into such court.
(c) Within
thirty (30) business days of learning of a purported transfer of Prohibited
Shares to a Purported Acquiror, the Corporation through its Secretary shall
demand that the Purported Acquiror surrender to the Agent the certificates
representing the Prohibited Shares, or any Resale Proceeds, and any Prohibited
Distributions, and if such surrender is not made by the Purported Acquiror
the
Corporation may institute legal proceedings to compel such transfer;
provided,
however,
that
nothing in this paragraph (c)
shall
preclude the Corporation in its discretion from immediately bringing legal
proceedings without a prior demand, and provided further
that
failure of the Corporation to act within the time periods set out in this
paragraph (c)
shall
not constitute a waiver of any right of the Corporation to compel any transfer
required by subparagraph (a)
of this
Section 4.
(d) Upon
a
determination by the Corporation that there has been or is threatened a
purported transfer of Prohibited Shares to a Purported Acquiror, the Corporation
may take such action in addition to any action permitted by the preceding
paragraph as it deems advisable to give effect to the provisions of this
Article
Twelve, including, without limitation, refusing to give effect on the books
of
this Corporation to such purported transfer or instituting proceedings to
enjoin
such purported transfer. For
the
sake of clarity, however, any transfer by the PBGC, the Delta Family-Care
Savings Plan or any other qualified plan for the employees of the Corporation
or
any of its subsidiaries shall not be subject to the restrictions contained
in
Section 2(b) herein and thus the Corporation shall not refuse to give effect
to
any such transfer or institute proceedings to enjoin such purported transfer.
Section
5.
Transferee
Information.
The
Corporation may require as a condition to the approval of the transfer of
any
shares of its Stock that the proposed transferee furnish to the Corporation
all
information reasonably requested by the Corporation and reasonably available
to
the proposed transferee and its affiliates with respect to the direct or
indirect ownership interests of the proposed transferee (and of Persons to
whom
ownership interests of the proposed transferee would be attributed for purposes
of Section 382 of the Code) in Stock or other options or rights to acquire
Stock.
Section
6.
Legend
on Certificates.
All
certificates evidencing ownership of shares of Stock that are subject to
the
restrictions on transfer contained in this Article Twelve shall bear a
conspicuous legend referencing the restrictions set forth in this Article
Twelve. For
the
avoidance of doubt, no certificates issued to the PBGC, the Delta Family-Care
Savings Plan or any other qualified plan for the employees of the Corporation
or
any of its subsidiaries shall bear a legend
to the
effect that the restrictions on transfer contained in this Article Twelve
shall
apply to the PBGC, the Delta Family-Care Savings Plan or any other qualified
plan for the employees of the Corporation or any of its
subsidiaries.
Section
7.
Waiver
of Article Twelve.
The
Board of Directors may, at any time prior to the Expiration Date, waive this
Article Twelve in respect of one or more classes of transfers or in respect
of
all transfers, provided
that the
Board of Directors determines (a) that there is no reasonable likelihood
that
such waiver will create or increase a material risk that limitations pursuant
to
Section 382 of the Code will be imposed on the utilization of the Tax Benefits,
either at the time of waiver or a reasonable time thereafter, or (b) that
the
benefits to the shareholders of the Corporation as a whole of so waiving
the
provisions hereof are sufficient to permit such waiver notwithstanding the
likely detriment to the shareholders as a whole of the limitations referred
to
in (a). Any such determination to waive this Article Twelve in respect of
all
transfers shall be filed with the Secretary of the Corporation and mailed
by the
Secretary to all stockholders of this Corporation within ten days after the
date
of such determination.
Section
8.
Board
Authority.
The
Board of Directors shall have the power to determine all matters necessary
for
assessing compliance with this Article Twelve, including, without limitation,
the identification of five-percent shareholders with respect to the Corporation
within the meaning of Section 382 of the Code and the regulations thereunder;
the ownership shifts, within the meaning of Section 382 of the Code, that
have
previously taken place; the magnitude of the ownership shift that would result
from the proposed transaction; the effect of any reasonably foreseeable
transactions by the Corporation or any other Person (including any
transfer
of Stock that the Corporation has no power to prevent, without regard to
any
knowledge on the part of the Corporation as to the likelihood of such transfer);
the possible effects of an ownership change within the meaning of Section
382 of
the Code and any other matters which the Board of Directors determines to
be
relevant. Moreover, the Corporation and the Board of Directors shall be entitled
to rely in good faith upon the information, opinions, reports or statements
of
the chief executive officer, the chief financial officer, or the chief
accounting officer of the Corporation or of the Corporation’s legal counsel,
independent auditors, transfer agent, investment bankers, and other employees
and agents in making the determinations and findings contemplated by this
Article Twelve to the fullest extent permitted by law. Any determination
by the
Board of Directors pursuant to this Article Twelve shall be
conclusive.
If
any
provision of this Article
Twelve
or any
application of such provision is determined to be invalid by any federal
or
state court having jurisdiction over the issue, the validity of the remaining
provisions shall not be affected and other applications of such provision
shall
be affected only to the extent necessary to comply with the determination
of
such court.
The
effective time of this Amended and Restated Certificate of Incorporation
is 9:03
a.m. on April 30, 2007.
IN
WITNESS WHEREOF, I
have
executed and attested this Amended and Restated Certificate of Incorporation
this
25th
day of April, 2007 in accordance with Section 303 of the Delaware General
Corporation Law.
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By:
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/s/
Leslie P. Klemperer
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Leslie
P. Klemperer
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Vice
President and Secretary
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