AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
REPUBLIC AIRWAYS HOLDINGS INC.
The undersigned hereby certifies that:
ONE: He is the duly elected and acting Executive Vice President and
Secretary of said corporation.
TWO: That the name of said corporation is Republic Airways Holdings Inc.
Said corporation was originally incorporated pursuant to the General Corporation
Law on March 20, 1996, under the name Wexford III Corp. and changed its name to
Wexford Air Holdings Inc. on November 8, 1999.
THREE: The Certificate of Incorporation of said corporation shall be
amended and restated to read in full as follows:
FIRST: The name of the corporation is REPUBLIC AIRWAYS HOLDINGS INC.
SECOND: The address of the registered office of this corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of Delaware as set forth in Title 8 of the Delaware Code
1953, as amended (the "GCL").
FOURTH: The total number of shares of stock which the corporation
shall have the authority to issue is Eighty Million (80,000,000) shares,
of which Seventy Five Million (75,000,000) shares shall be Common Stock
and Five Million (5,000,000) shares shall be Preferred Stock, with both
Common and Preferred Stock having a par value of $.001 per share.
A. PREFERRED STOCK. The Board of Directors is expressly
authorized to provide for the issue from time to time of all or any
shares of the Preferred Stock, in one or more series, and to fix for
each such series such voting powers, full or limited, and such
designations, preferences and relative, participating, optional or
other special rights and such qualifications, limitations or
restrictions thereof as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a "Preferred Stock
Designation") and as may be permitted by the GCL. The number of
authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the voting power of
all the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class, without a separate vote of the
holders of the Preferred Stock, or any series thereof, unless a vote
of any such holders is required pursuant to any Preferred Stock
B. COMMON STOCK. Except as otherwise required by law or as
otherwise provided in any Preferred Stock Designation, the holders
of the Common Stock shall exclusively possess all voting power and
each share of Common Stock shall have one vote.
FIFTH: The corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, alter
or repeal the by-laws of the corporation. Notwithstanding anything in this
Certificate of Incorporation to the contrary, this paragraph and
paragraphs ELEVENTH, TWELFTH and THIRTEENTH of this Certificate of
Incorporation may not be repealed or amended in any respect, and no
provision inconsistent therewith may be adopted by the stockholders unless
such action is approved by the affirmative vote of the holders of
sixty-six and two-thirds percent (662/3%) of the outstanding shares of all
classes and series of the corporation entitled to vote generally in the
election of the corporation's directors.
SEVENTH: Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provision of the GCL) outside the
State of Delaware at such place or places as may be designated from time
to time by the Board of Directors or in the by-laws of the corporation.
Election of directors need not be by written ballot unless the by-laws of
the corporation shall so provide.
EIGHTH: A. Except as the GCL may otherwise require, any vacancies in
the Board of Directors for any reason, including unfilled vacancies
resulting from the removal of directors for cause, and newly created
directorships, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum, or by the sole
remaining director. All directors shall hold office until the expiration
of their respective terms of office and until their successors shall have
been elected and qualified.
B. Notwithstanding anything contained in this Certificate of
Incorporation or the By-Laws of the Corporation to the contrary, the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting
together as a single class, shall be required to alter, change, amend,
repeal, or adopt any provision inconsistent with, this Article EIGHTH:
NINTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this corporation under the provisions of Section 291 of the
GCL or on the application of trustees in dissolution or of any receiver or
receivers appointed for this corporation under the provisions of Section
279 of the GCL, order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation,
as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class
of stockholders of this corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of this corporation as
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court
to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class
of stockholders, of this corporation, as the case may be, and also on this
TENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in
the manner now or thereafter prescribed by statute, and all rights
conferred on the stockholders herein are granted subject to this
ELEVENTH. The corporation shall indemnify each person who is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise, or is or was a director, officer, employee or agent of a
foreign or domestic corporation that was a predecessor corporation of this
corporation or another enterprise at the request of the predecessor
corporation to the fullest extent permitted by Section 145 of the GCL, as
amended. The indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as
to action in another capacity while holding such office, and such
indemnification shall continue as to a person who has ceased to be such a
person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall be prospective only, and shall not
adversely affect any
right or protection of a director, officer, agent, or other person
existing at the time of such repeal or modification.
TWELFTH: A director of this corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for the
breach of any fiduciary duty as a director, except (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
GCL, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the GCL is amended after the date of Incorporation of the corporation
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted
by the GCL, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of
the corporation existing at the time of such repeal or modification.
THIRTEENTH: A. If Wexford Capital LLC or any of its Affiliates
(collectively, "Parent") or any director or officer of the corporation who
is a director, officer or employee of Parent acquires knowledge of a
potential transaction or matter which may be a Competitive Opportunity or
otherwise is then exploiting or investigating the exploitation of any
Competitive Opportunity, the corporation shall have no interest in, and no
expectation that, such Competitive Opportunity be offered to it, any such
interest or expectation being hereby renounced so that Parent and such
individuals (1) shall (i) have no duty to communicate or present such
Competitive Opportunity to the corporation and (ii) have the right to hold
any such Competitive Opportunity for Parent's (and its officers',
directors', agents', stockholders', members', partners', Affiliates' or
Subsidiaries') own account and benefit; or to recommend, assign or
otherwise transfer or deal in such Competitive Opportunity to Persons
other than the corporation or any Affiliate of the corporation and (2)
cannot be, and shall not be, liable to the corporation or its stockholders
for breach of any fiduciary duty as a stockholder, officer or director of
the corporation or otherwise by reason of the fact that Parent or any such
individual pursues or acquires such Competitive Opportunity for Parent,
directs, sells, assigns or otherwise transfers or deals in such
Competitive Opportunity to another Person, or does not communicate
information regarding such Competitive Opportunity to the corporation.
B. For purposes of this Article, capitalized terms shall have the
(i) "Affiliate" means, as applied to a person, any other person
directly or indirectly controlling, controlled by, or under common control
with, that person. For purposes of this definition "control" (including,
with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"),
as applied to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of that person, whether through the ownership of voting securities, by
contract or otherwise.
(ii) "Capital Stock" of any person means any and all shares,
interests, rights to purchase, options, warrants, participation or other
equivalents of or interest in (however designated) the equity of such
person, including any preferred stock.
(iii) "Competitive Opportunity" means an investment or business
opportunity or prospective economic or competitive advantage in which the
corporation could have an interest or expectancy.
(iv) "Subsidiary" of any person means any other person of which more
than fifty percent (50%) of the total Voting Power thereof or the Capital
Stock thereof is at the time owned or controlled, directly or indirectly,
by the first person and/or one or more of its Subsidiaries.
(v) "Voting Power" means, as of the date of determination, the
voting power in the general election of directors, managers or trustees,
FOURTEENTH: The corporation elects not to be governed by Section 203
of the GCL.
FEDERAL AVIATION ACT COMPLIANCE
Section 1. DEFINITIONS. The following definitions shall apply for purposes
of this Article FIFTEENTH:
(a) "Act" shall mean the Federal Aviation Act of 1958, recodified
at Title 49 United States Code (Transportation), as amended
from time to time.
(b) "Excess Shares" shall have the meaning set forth in Section 4
of this Article FIFTEENTH.
(c) "Foreign Stock" shall mean the Voting Stock registered in the
Foreign Stock Record.
(d) "Foreign Stock Record" shall have the meaning set forth in
Section 3 of this Article FIFTEENTH.
(e) "Non-Citizen" shall mean any person or entity that is not a
"citizen of the United States" as defined in 49 U.S.C. ss.
40102(a)(15), as amended, or in any successor provision,
including any agent, trustee or representative of a
(f) "Own or Control" or "Owned or Controlled", when used in
reference to Voting Stock, shall mean (i) ownership of record,
(ii) beneficial ownership, or (iii) the power to direct, by
agreement, agency or in any other manner, the voting of Voting
Stock. Any determination by the Board of Directors as to
whether Voting Stock is Owned or Controlled by a Non-Citizen
shall be final.
(g) "Permitted Foreign Ownership" shall mean the number of shares
of Voting Stock in the aggregate that may be owned or
controlled by Non-Citizens pursuant to the Act or pursuant to
any United States statutory or United States Department of
Transportation regulatory or interpretive restrictions on
foreign ownership and control of the corporation, such that
the corporation and any of its subsidiaries may or still be
deemed "a citizen of the United States" as defined in 49
U.S.C. ss. 40102(a)(15), as amended, or in any successor
(h) "Redemption Price" shall have the meaning set forth in Section
5 of this Article FIFTEENTH.
(i) "Voting Stock" shall mean the outstanding shares of capital
stock of the corporation entitled to vote, including any such
shares that would be entitled to vote but for the operations
of this Article FIFTEENTH.
Section 2. POLICY. It is the policy of the corporation that, consistent
with the requirements of the Act or of any other United States statutory
or United States Department of Transportation regulatory or interpretive
restrictions on foreign ownership and control of the corporation,
Non-Citizens shall not Own or Control more than the Permitted Foreign
Ownership and, if Non-Citizens nonetheless at any time Own or Control more
than the Permitted Foreign Ownership, the voting rights of the shares of
Foreign Stock in excess of the Permitted Foreign Ownership shall be
suspended in accordance with Section 4 of this Article FIFTEENTH below.
Section 3. FOREIGN STOCK RECORD.
(a) DESCRIPTION. The corporation or any transfer agent designated
by it shall maintain a separate stock record (the "Foreign
Stock Record") for purposes of registering Voting Stock Owned
or Controlled by Non-Citizens. The Foreign Stock Record shall
include (a) the name and nationality of each such Non-Citizen,
(b) the number of Voting Stock Owned or Controlled by such
Non-Citizen, and (c) the date of registration of such shares
in the Foreign Stock Record.
(b) REGISTRATION. The corporation shall register in the Foreign
Stock Record shares of Voting Stock that the corporation
determines are Owned or Controlled by one or more
Non-Citizens. Such shares shall be registered in the Foreign
Stock Record in chronological order based
on the date and time of the written request for determination
by the corporation of the status of any such Voting Stock. The
corporation may rely on such certifications or other evidence
it deems appropriate in determining the citizenship status of
any person and, by way of illustration but not limitation, the
corporation may presume that Voting Stock is Owned or
Controlled by a Non-Citizen and may register such Voting Stock
in the Foreign Stock Record if the registered holder thereof
has an address located outside the United States.
(c) CONFIRMATION OF CITIZENSHIP. The corporation from time to time
may require the holder of record of any Voting Stock to
confirm the citizenship status of the person or persons who
Own or Control that Voting Stock by executing such
certificates and providing such other evidence that the
corporation determines is reasonably necessary for that
purpose. If the holder of record of shares of Voting Stock
fails to confirm or provide evidence to the satisfaction of
the corporation that such shares are not Owned or Controlled
by one or more Non-Citizens, the corporation shall be
entitled, but not obligated, to register those shares in the
Foreign Stock Record.
Section 4. SUSPENSION OF VOTING RIGHTS.
(a) SUSPENSION. If at any time the number of shares of Foreign
Stock exceeds the Permitted Foreign Ownership, the voting
rights of shares of Foreign Stock shall automatically be
suspended, in the reverse chronological order of the dates and
times of registry of such shares in the Foreign Stock Record,
until the voting rights of a sufficient number thereof shall
have been suspended so that the number of shares of Foreign
Stock that continues to have voting rights equals the greatest
whole number that is less than or equal to the Permitted
Foreign Ownership. The particular shares of Foreign Stock that
shall have their voting rights suspended are referred to
collectively as the "Excess Shares".
(b) REINSTATEMENT: If, while the voting rights of any shares of
Foreign Stock are suspended, the corporation determines that
the number of shares of Foreign Stock that have voting rights
is less than the Permitted Foreign Ownership, voting rights
shall automatically be reinstated for shares of Foreign Stock
as to which voting rights have been suspended, in the reverse
order in which the voting rights thereof were suspended under
Section 4(a) above, until the maximum number of shares of
Foreign Stock, not exceeding the Permitted Foreign Ownership,
shall have voting rights. Voting rights also shall
automatically be reinstated for any shares of Foreign Stock
that have suspended voting rights if such shares are
transferred to a person or entity that is not a Non-Citizen.
Section 5. REDEMPTION OF EXCESS SHARES. To the extent necessary for the
corporation to comply with any present or future registration, licensing
or other provisions of the Act, or regulations promulgated thereunder, the
corporation shall have the power, but not the obligation, to redeem Excess
Shares out of funds legally available therefor, subject to the following
terms and conditions:
(a) The per share redemption price (the "Redemption Price") to be
paid for the Excess Shares to be redeemed shall be the average
closing sales price of such shares on the NASDAQ National
Market System Composite Tape during the 10 trading days
immediately prior to the date the notice of redemption is
given; or if such shares are not then traded on the NASDAQ
National Market System, then the closing sales prices of such
shares on any other national securities exchange on which such
shares are then listed; or if such shares are not then listed
on any national securities exchange, then the closing sales
prices as quoted in the NASDAQ National Market System; of if
such shares are not then so quoted, then the mean between the
representative bid and ask prices as quoted by NASDAQ or
another generally recognized reporting system, on each of such
10 trading days.
(b) The Redemption Price may be paid in cash or by delivery of a
promissory note of the corporation, at the election of the
corporation. Any such promissory note shall have a maturity of
not more than ten years from the date of issuance and shall
bear interest at the rate equal to the then current coupon
rate of a 10-year treasury note as such rate is published in
the Wall Street Journal or comparable publication.
(c) A notice of redemption shall be given by first class mail,
postage prepaid, mailed not less than 15 calendar days prior
to the redemption date to each holder of record of the shares
to be redeemed, at such holder's address as the same appears
on the stock register of the corporation. Each such notice
shall state (i) the redemption date, (ii) the number of shares
of Voting Stock to be redeemed from such holder, (iii) the
Redemption Price and the manner of payment thereof, (iv) the
place where certificates for such shares are to be surrendered
for payment of the Redemption Price, and (v) that dividends on
the shares to be redeemed will cease to accrue on such
(d) From and after the redemption date, dividends, if any, on the
shares of Voting Stock called for redemption shall cease to
accrue and such shares shall no longer be deemed to be
outstanding and all rights of the holders thereof as
stockholders of the corporation (except the right to receive
from the corporation the Redemption Price) shall cease. Upon
surrender of the certificates for any shares so redeemed in
accordance with the requirements of the notice of redemption
(properly endorsed or assigned for transfer if the Board of
Directors shall so require and the notice shall so state),
such shares shall be redeemed by the
corporation at the Redemption Price. In case fewer than all
the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the shares not
redeemed without cost to the holder thereof.
Section 6. ADMINISTRATIVE MATTERS AND EFFECTIVENESS.
(a) BY-LAWS. The Amended and Restated By-Laws of the corporation
may be amended by majority vote of the Board of Directors to
include appropriate provisions to effectuate the requirements
of this Article FIFTEENTH.
(b) QUORUM. Except as otherwise provided or required by law, the
presence, in person or by proxy, of the holders of record of
shares of Voting Stock entitling the holders thereof to cast a
majority of the voting power of all shares of Voting Stock
(after giving effect to the reduction of voting rights
prescribed in Section 4 of this Article FIFTEENTH) shall
constitute a quorum at all meetings of stockholders of the
corporation, and any quorum requirement or any requirement for
stockholder approval shall be determined after giving effect
to the reduction in voting rights prescribed in Section 4 of
this Article FIFTEENTH.
(c) SEVERABILITY. If any section or lesser provision of this
Article FIFTEENTH is determined to be invalid, void, illegal
or unenforceable, then the remaining sections and provisions
of this Article FIFTEENTH shall continue to be valid and
enforceable and in no way be affected, impaired or
(d) EFFECTIVENESS. The limitations on the rights of the holders of
shares of Voting Stock and the other limitations and rights of
the corporation provided for in this Article FIFTEENTH shall
be effective notwithstanding any other provision of this
Certificate of Incorporation but only for so long as the
corporation or any subsidiary (i) is subject to any
restriction on the ownership of Voting Stock by Non-Citizens
or (ii) if not then subject to any restriction on the
ownership of Voting Stock by Non-Citizens, intends to
reinstate any license, franchise or operating certificate or
authority lost as a result of a restriction on the ownership
of Voting Stock by Non-Citizens within a reasonable time after
ceasing to hold the same.
FOUR: The foregoing amendment and restatement was approved by the holders
of the requisite number of shares of said corporation in accordance with Section
228 of the General Corporation Law.
FIVE: That said amendment and restatement was duly adopted in accordance
with the provisions of Sections 228, 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been executed by the Vice President and Secretary of this
corporation on this 2nd day of March, 2002.
/s/ Robert H. Cooper
Robert H. Cooper
Executive Vice President and Secretary