DELTA AIR LINES, INC.

Transcription

1 DELTA AIR LINES, INC. BYLAWS As Amended and Restated through October 28, 2016 Incorporated Under the Laws of Delaware

2 TABLE OF CONTENTS Article Section Subject Page I Offices Registered Office Other Offices... 1 II Stockholders Meetings Place of Meetings Annual Meetings Special Meetings Notice of Meetings Quorum, Adjournment and Voting Voting Rights and Proxies List of Stockholders Nominations; Stockholder Meetings Proxy Access for Director Nominations... 7 III Directors Number and Term of Office Powers Vacancies Resignations and Removals Meetings Quorum and Voting Action Without Meeting Fees and Compensation Chairman of the Board Committees Emergency Bylaws IV Officers Officers Designated Tenure, Succession and Duties of Officers V Execution of Corporate Instruments, and Voting Securities Owned by the 20 Corporation... 1 Execution of Corporate Instruments Execution of Voting of Securities Owned by Corporation VI Shares of Stock Form and Execution of Certificates Lost, Stolen or Destroyed Certificates Transfers Fixing Record Dates Registered Stockholders VII Other Securities of the Corporation VIII Corporate Seal i

3 Article Section Subject Page IX Indemnification of Directors, Officers, Employees and Agents Right to Indemnification Authority to Advance Expenses Procedure for Operating Indemnification and Advancement Right of Indemnitees to Bring Suit Provisions Nonexclusive Authority to Insure Survival of Rights Settlement of Claims Effect of Amendment Subrogation No Duplication of Payments Merger or Consolidation Severability X Notices XI Amendments XII Electronic Transmission XIII Adoption or Extension of Shareholder Rights Plan ii

4 DELTA AIR LINES, INC. BYLAWS (As amended and restated through October 28, 2016) Section 1. Registered Office. ARTICLE I Offices 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. Section 1. Place of Meetings. ARTICLE II Stockholders' 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.

5 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. 2

6 (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 present and 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. 3

7 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 (i) pursuant to the corporation's notice of meeting, (ii) by or at the direction of the Board of Directors, (iii) 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, or (iv) by any stockholder or group of stockholders of the corporation giving the notice provided for in Section 9 of this Article II. (b) Subject to Section 8(g) below, 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 given pursuant to Section 8(a)(iii) 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 given pursuant to Section 8(a)(iii) and this Section 8(b) shall set forth: (i) as to each person whom the stockholder proposes to nominate pursuant to Section 8(a)(iii) for election or reelection as a director (A) 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 ), (B) 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 and (C) such additional information as is necessary for the Board of Directors to determine compliance of the proposed nominee with Section 1(B) under the heading Selection and Composition of the Board in the corporation s corporate governance principles (the Eligibility Standards ); (ii) 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 4

8 (iii) as to the stockholder giving the notice and the beneficial owners if any on whose behalf the nomination or proposal is made (A) the name and address of such stockholder, as they appear on the corporation's books, and of such beneficial owner, (B) the class and number of shares of the corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (C) 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 (D) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (1) 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 (2) 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 reelection 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 5

9 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 Article II 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 Article II and, if any proposed nomination or business is not in compliance with this Article II, 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 under notice given pursuant to Section 8(a)(iii), 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, 6

10 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. Section 9. Proxy Access for Director Nominations. (a) In connection with an annual meeting of stockholders, the corporation shall include in its proxy statement and on its form of proxy the name of any person nominated for election to the Board of Directors (a Stockholder Nominee ) by an Eligible Stockholder (as defined below), together with the Required Information (as defined below) if the following conditions are met: (i) the Stockholder Nominee is identified in a timely notice that satisfies the requirements of this Section 9 (the Stockholder Notice ); (ii) the Stockholder Notice is submitted by a stockholder or a group of stockholders that satisfies the requirements of this Section 9 (an Eligible Stockholder ); (iii) the Eligible Stockholder expressly elects at the time of providing the Stockholder Notice to have its nominee included in the corporation s proxy materials pursuant to this Section 9; (iv) the Stockholder Nominee satisfies the eligibility and other requirements described in this Section 9; and (v) any additional requirements of these Bylaws are met. must: (b) To qualify as an Eligible Stockholder, a stockholder or group of stockholders (i) own (as defined below) a number of shares equal to three percent (3%) or more of the outstanding capital stock of the corporation eligible to vote in the election of directors (the Required Shares ) as of both the date of the Stockholder Notice and the record date for determining stockholders entitled to vote at the applicable annual meeting; (ii) have continuously owned the Required Shares for at least three (3) years prior to the date of the Stockholder Notice; and 7

11 (iii) continue to own the Required Shares through the date of the annual meeting. (c) For purposes of satisfying the ownership requirement under this Section 9: (i) the shares of the capital stock of the corporation owned by no more than twenty (20) stockholders, or by the person or persons who own shares of the capital stock of the corporation and on whose behalf any stockholder is acting, may be aggregated; and (ii) a group of funds under common management and investment control shall be treated as one stockholder or person for this purpose. No person may be a member of more than one group of persons constituting an Eligible Stockholder under this Section 9 in a particular year. For the avoidance of doubt, if a group of stockholders aggregates ownership of shares in order to meet the requirements under this Section 9, all shares held by each stockholder constituting their contribution to the foregoing 3% threshold must be held by that stockholder continuously for at least three (3) years prior to the date of the Stockholder Notice, and evidence of such continuous ownership shall be provided as specified in Section 9(h). (d) For purposes of this Section 9, an Eligible Stockholder (or each stockholder of a group constituting an Eligible Stockholder) shall be deemed to own only those outstanding shares of the capital stock of the corporation as to which the stockholder possesses both: (i) the full voting and investment rights pertaining to the shares; and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares. The number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by or on behalf of such stockholder or any of its affiliates in any transaction that has not been settled or closed, (y) borrowed by or on behalf of such stockholder or any of its affiliates for any purpose or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell or (z) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by or on behalf of such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of outstanding capital stock of the corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such stockholder s or its affiliates full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree gain or loss arising from the full economic ownership of such shares by such stockholder or affiliate. A stockholder shall own shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A stockholder s ownership of shares shall be deemed to continue during any period in which (i) the stockholder has loaned such shares, provided that the stockholder has the power to recall such loaned shares on not more than five (5) business days notice or (ii) the stockholder has delegated any voting 8

12 power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the stockholder. The terms owned, owning and other variations of the word own shall have correlative meanings. (e) The number of Stockholder Nominees appearing in the corporation s proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two (2) or (ii) twenty percent (20%) of the number of directors in office as of the last day on which a Stockholder Notice may be delivered pursuant to this Section 9, or if such amount is not a whole number, the closest whole number below twenty percent (20%). For a particular annual meeting this number shall be reduced by: (i) any Stockholder Nominees elected to the Board of Directors at either of the two (2) preceding annual meetings who are standing for reelection; (ii) Stockholder Nominees whose nominations are subsequently withdrawn; and (iii) Stockholder Nominees whom the Board of Directors or any committee designated by the Board of Directors decides to nominate for election to the Board of Directors. In the event that one or more vacancies occurs on the Board of Directors for any reason after the deadline set forth in Section 9(f), but before the date of the annual meeting of stockholders, and the Board of Directors resolves to reduce the size of the board in connection therewith, the maximum number of Stockholder Nominees appearing in the Proxy Statement shall be calculated based on the number of directors in office as so reduced. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 9 exceeds the maximum number, each Eligible Stockholder will select one Stockholder Nominee for inclusion in the corporation s proxy materials until the maximum number is reached, going in order of the amount (largest to smallest) of shares of the capital stock of the corporation each Eligible Stockholder disclosed as owned in information submitted to the corporation pursuant to Section 9(h) and confirmed by the corporation. If the maximum number is not reached after each Eligible Stockholder has selected one Stockholder Nominee, this selection process will continue as many times as necessary, following the same order each time, until the maximum number is reached. (f) To be timely, the Eligible Stockholder must submit a Stockholder Notice to the Secretary of the corporation not less than one hundred and twenty (120) days nor more than one hundred and fifty (150) days before the anniversary of the date the corporation commenced delivery of its proxy materials in connection with the most recently held annual meeting of stockholders. If the annual meeting is called for a date that is more than thirty (30) days before or thirty (30) days after the anniversary of the most recent annual meeting, the Stockholder Notice must be submitted not later than the close of business on the later of one hundred and twenty (120) days in advance of such annual meeting date or ten (10) days following the day on which public disclosure of the date of the annual meeting was made. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a Stockholder Notice as described above. 9

13 (g) For purposes of this Section 9, the Required Information that the corporation will include in its proxy statement is: (i) the information concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the corporation s proxy statement by the regulations promulgated under the Exchange Act; and (ii) if the Eligible Stockholder so elects, a written statement not to exceed five hundred (500) words, in support of the Stockholder Nominee s candidacy. Notwithstanding anything to the contrary contained in this Section 9, the corporation may omit from its proxy materials any information or supporting statement (or portion thereof) that it, in good faith, believes would violate any applicable law or regulation. To be timely, the Required Information must be delivered to or mailed and received by the Secretary of the Corporation within the time period specified in Section 9(f) for providing the Stockholder Notice. Nothing in this Section 9 shall limit the corporation s ability to solicit against and include in its proxy materials its own statements relating to any Eligible Stockholder or Stockholder Nominee. (h) Within the time period specified in Section 9(f) for providing the Stockholder Notice, an Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 9) must also provide the following to the Secretary of the corporation: (i) one or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been held during the requisite three (3) year holding period) verifying that, as of a date within seven (7) days prior to the date of the Stockholder Notice, the Eligible Stockholder owns, and has owned continuously for the preceding three (3) years, the Required Shares, (ii) the Eligible Stockholder s agreement to provide, within five (5) business days after the record date for the annual meeting, written statements from the record holder and intermediaries verifying the Eligible Stockholder s continuous ownership of the Required Shares through the record date; (iii) as to any group of funds whose shares are aggregated for purposes of constituting one stockholder, within five (5) business days after the date of the Stockholder Notice, documentation reasonably satisfactory to the corporation that demonstrates that the funds are under common management and investment control; (iv) the written consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected; (v) a copy of the Schedule 14N that has been filed with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act, as such rule may be amended from time to time; (vi) a written representation that the Eligible Stockholder: 10

14 (A) acquired the Required Shares in the ordinary course of business and not with the intent to change or influence control of the corporation, and does not presently have such intent, (B) has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than the Stockholder Nominee(s) being included in the corporation s proxy materials pursuant to this Section 9, (C) has not engaged and will not engage in, and has not and will not be a participant in another person s, solicitation within the meaning of Rule 14a- 1(l) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee or a nominee of the Board of Directors, (D) will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the corporation, and (E) has not nominated or been a part of a group that nominated any individual who has been elected to and continues to serve on the board of directors (or equivalent body) of any airline listed in the non-competition section of the Company s most recent (as of the date of such representation) Model Award Agreement for the Delta Air Lines, Inc. Long-Term Incentive Plan as filed as an exhibit to the Company s periodic reports with the Securities and Exchange Commission ( Airline Competitor ); (vii) a description of: (A) any ownership interest of the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 9) in any Airline Competitor and (B) any financial, commercial, employment or other contractual relationship or affiliation that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 9) currently has or had within the last three (3) years with any Airline Competitor; (viii) a written undertaking that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder under this Section 9) agrees to: (A) own the Required Shares through the date of the annual meeting, (B) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder s communications with the stockholders of the corporation or out of the information that the Eligible Stockholder provided to the corporation, 11

15 (C) indemnify and hold harmless the corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the corporation or any of its directors, officers or employees (1) arising out of or related to a failure or alleged failure of the Eligible Stockholder or Stockholder Nominee to comply with, or any breach of, its, or his or her, as applicable, obligations, agreements or representations under or pursuant to this Section 9, (2) otherwise arising out of any nomination, solicitation or other activity by the Eligible Stockholder in connection with its efforts to elect the Stockholder Nominee pursuant to this Section 9 or (3) arising out of or related to any violation or alleged violation of any applicable state or federal law (including without limitation the Clayton Antitrust Act of 1914 or other antitrust laws) or the listing standards of the New York Stock Exchange (or such other principal U.S. exchange upon which the capital stock of the corporation is listed if not the New York Stock Exchange) due to the conduct of the Eligible Stockholder or Stockholder Nominee in connection with the Stockholder Nominee s service as a director if elected to the Board of Directors, (D) file with the Securities and Exchange Commission any solicitation or other communication with the corporation s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act, (E) comply with all other laws and regulations applicable to any nomination, solicitation or election in connection with the annual meeting, (F) provide to the corporation prior to the annual meeting such additional information as necessary or reasonably requested by the corporation, and (G) not engage in any effort to nominate or elect any individual to the board of directors (or equivalent body) of any Airline Competitor during any time that a Stockholder Nominee nominated by the Eligible Stockholder is serving on the Board of Directors of the corporation; and (ix) a written designation by all members of a group that together constitute an Eligible Stockholder of one member to act on behalf of the group with respect to the nomination and matters related thereto, including any withdrawal of the nomination. (i) Within five (5) business days of the corporation s request, a Stockholder Nominee must deliver to the Secretary of the corporation: (i) all completed and signed questionnaires in the form required of the corporation s directors and officers generally; 12

16 (ii) a detailed description of all communications between the Stockholder Nominee and (a) any Airline Competitor or (b) any organization representing or seeking to represent any employee group of the corporation in collective bargaining matters; and (iii) such additional information as is necessary to permit the Board of Directors to determine (A) if each Stockholder Nominee is independent under the listing standards of the New York Stock Exchange (or such other principal U.S. exchange upon which the capital stock of the corporation is listed if not the New York Stock Exchange), any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of the corporation s directors (the Applicable Independence Standards ), (B) the ability of each Stockholder Nominee to serve on the various committees of the Board of Directors and (C) compliance of the Stockholder Nominee with the Eligibility Standards (as defined in Section 8(b)). (j) The corporation shall not be required to include any Stockholder Nominee in its proxy materials for any meeting of stockholders pursuant to this Section 9: (i) for which the Secretary of the corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors pursuant to the advance notice requirements for stockholder nominees for director set forth in Section 8 of this Article II and such stockholder does not expressly elect at the time of providing the notice to have its nominee included in the corporation s proxy materials pursuant to this Section 9; (ii) if the Eligible Stockholder who has nominated such Stockholder Nominee has engaged in or is currently engaged in, or has been or is a participant in another person s, solicitation within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee(s) or a nominee of the Board of Directors; (iii) who is not independent under the Applicable Independence Standards in effect as of the last day on which a Stockholder Notice may be delivered pursuant to this Section 9, as determined by the Board of Directors; (iv) who is not in compliance with the Eligibility Standards in effect as of the last day on which a Stockholder Notice may be delivered pursuant to this Section 9, as determined by the Board of Directors; (v) whose election as a member of the Board of Directors would cause the corporation to be in violation of the Certificate of Incorporation, these Bylaws, the listing standards of the New York Stock Exchange (or such other principal U.S. exchange upon which the capital stock of the corporation is listed if not the New York Stock Exchange), or any applicable law, rule or regulation; (vi) who is or has been, within the past three (3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914; 13

17 (vii) whose election would cause the corporation to fail to qualify as citizen of the United States as the term is used in Section 40102(a)(15) of Title 49 of the United States Code or in any similar legislation of the United States enacted in substitution or replacement therefor, as interpreted by the United States Department of Transportation; (viii) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted of a felony; (ix) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended; (x) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the corporation in respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading, as determined by the Board of Directors; or (xi) if the Eligible Stockholder or applicable Stockholder Nominee otherwise contravenes any of the agreements or representations made by such Eligible Stockholder or Stockholder Nominee or fails to comply with its obligations pursuant to this Section 9. (k) In the event that any information or communications provided by the Eligible Stockholder or Stockholder Nominee to the corporation or its stockholders ceases to be true and correct in any respect or omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary of the corporation of any such inaccuracy or omission in such previously provided information and of the information that is required to make such information or communication true and correct. (l) Notwithstanding anything to the contrary set forth herein, the chairman of the Board of Directors (or such other director presiding at the annual meeting if not the chairman of the Board of Directors) shall declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the corporation, if (i) the Stockholder Nominee(s) and/or the applicable Eligible Stockholder shall have breached its or their obligations or agreements or contravened any of its representations under this Section 9, as determined by the chairman of the Board of Directors (or such other director presiding at the annual meeting of stockholders), or (ii) the Eligible Stockholder (or a qualified representative thereof) does not appear at the annual meeting of stockholders to present any nomination pursuant to this Section 9. (m) The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret this Section 9 and to make any and all determinations necessary or advisable to apply this Section 9 to any persons, facts or circumstances, including the power to determine: (i) whether a person or group of persons qualifies as an Eligible Stockholder; 14

18 (ii) whether outstanding shares of the corporation s capital stock are owned for purposes of meeting the ownership requirements of this Section 9; (iii) whether a Stockholder Notice complies with this Section 9; (iv) whether a person satisfies the qualifications and requirements to be a Stockholder Nominee; (v) whether inclusion of the Required Information in the corporation s proxy statement is consistent with all applicable laws, rules, regulations and listing standards; and (vi) whether any and all requirements of this Section 9 have been satisfied. Any such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board of Directors) shall be conclusive and binding on all persons, including the corporation and all record or beneficial owners of stock of the corporation. ARTICLE III Directors Section 1. Number and Term of Office. (a) The number of directors which shall constitute the whole Board of Directors shall be not less than five (5) nor more than eighteen (18), 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 (excluding abstentions); and, except in an election where the number of nominees exceeds the number of directors to be elected, any indication in a proxy card or voting instructions to withhold authority for the election of one or more nominees shall constitute a vote cast, which shall have the effect of a vote against the nominee(s). 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. 15

19 (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 16