AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JETBLUE AIRWAYS CORPORATION
The undersigned, David Neeleman and Thomas Kelly, hereby certify that:
ONE: They are the duly elected, qualified and acting Chief Executive
Officer and Secretary, respectively, of JetBlue Airways Corporation, a
Delaware corporation.
TWO: The Certificate of Incorporation of said corporation was
originally filed in the Office of the Secretary of State of the State of
Delaware on August 24, 1998 under the name New Air Corporation.
THREE: The Amended and Restated Certificate of Incorporation of said
corporation is amended and restated to read in its entirety as follows:
ARTICLE I
The name of this corporation is JetBlue Airways Corporation (the
"Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, Delaware.
The name of the Corporation's registered agent at such address is National
Registered Agents, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated, respectively, "Common Stock" and "Preferred Stock." The total number
of shares that the Corporation is authorized to issue is Five Hundred Twenty
Five Million (525,000,000). Five Hundred Million (500,000,000) shares shall be
Common Stock, par value $0.01 per share, and Twenty Five Million (25,000,000)
shares shall be Preferred Stock, par value $0.01 per share. Immediately upon the
filing of this Amended and Restated Certificate of Incorporation with the Office
of the Secretary of State of the State of Delaware, each one (1) share of the
Corporation's Class A-1 Common Stock, Class A-2 Common Stock, Series A-1
Preferred, Series A-2
Preferred, Series B-1 Preferred and Series B-2 Preferred shall be converted into
one (1) share of Common Stock.
The Preferred Stock may be issued from time to time in one or more
series, without further stockholder approval. The Board of Directors of the
Corporation is hereby authorized to fix or alter the rights, preferences,
privileges and restrictions granted to or imposed upon each series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, or of any of them. The rights, privileges, preferences and restrictions
of any such additional series may be subordinated to, PARI PASSU with
(including, without limitation, inclusion in provisions with respect to
liquidation and acquisition preferences, redemption and/or approval of matters
by vote), or senior to any of those of any present or future class or series of
Preferred Stock or Common Stock. The Board of Directors is also authorized to
increase or decrease the number of shares of any series prior or subsequent to
the issue of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
ARTICLE V
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind any or all of the Bylaws of the Corporation. In addition, the
Bylaws may be amended by the affirmative vote of holders of at least sixty-six
and two-thirds percent (66 2/3%) of the outstanding shares of voting stock of
the Corporation entitled to vote at an election of directors.
ARTICLE VI
The number of directors of the Corporation shall be determined by
resolution of the Board of Directors.
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide. Advance notice of stockholder nominations
for the election of directors and of any other business to be brought before any
meeting of the stockholders shall be given in the manner provided in the Bylaws
of this Corporation.
At each annual meeting of stockholders, directors of the Corporation
shall be elected to hold office until the expiration of the term for which they
are elected, or until their successors have been duly elected and qualified;
except that if any such election shall not be so held, such election shall take
place at a stockholders' meeting called and held in accordance with the GCL.
The directors of the Corporation shall be divided into three (3)
classes as nearly equal in size as is practicable, hereby designated Class I,
Class II and Class III. For the purposes hereof, the initial Class I, Class II
and Class III directors shall be those directors so designated by a resolution
of the Board of Directors. At the first annual meeting of stockholders following
the closing of the initial public offering of the Corporation's Common Stock,
the term of office of the Class I directors shall expire and Class I directors
shall be elected for a full term of three (3)
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years. At the second annual meeting of stockholders following the closing of the
initial public offering of the Corporation's Common Stock, the term of office of
the Class II directors shall expire and Class II directors shall be elected for
a full term of three (3) years. At the third annual meeting of stockholders
following the initial public offering of the Corporation's Common Stock, the
term of office of the Class III directors shall expire and Class III directors
shall be elected for a full term of three (3) years. At each succeeding annual
meeting of stockholders, directors shall be elected for a full term of three (3)
years to succeed the directors of the class whose terms expire at such annual
meeting. If the number of directors is hereafter changed, each director then
serving as such shall nevertheless continue as a director of the Class of which
such director is a member until the expiration of such director's current term
and any newly created directorships or decrease in directorships shall be so
apportioned among the classes as to make all classes as nearly equal in number
as is practicable.
Vacancies occurring on the Board of Directors for any reason may be
filled only by vote of a majority of the remaining members of the Board of
Directors, even if less than a quorum, at any meeting of the Board of Directors,
or by a sole remaining director. A person so elected by the Board of Directors
to fill a vacancy shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director's
successor shall have been duly elected and qualified. A director may be removed
from office only if such removal is (i) for cause and (ii) by the affirmative
vote of the holders of at least 66 2/3% of the outstanding shares of voting
stock of the Corporation entitled to vote at an election of directors. Directors
may not be removed without cause.
ARTICLE VII
Stockholders of the Corporation shall take action by meetings held
pursuant to this Amended and Restated Certificate of Incorporation and the
Bylaws and shall have no right to take any action by written consent without a
meeting. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. Special meetings of the stockholders, for
any purpose or purposes, may only be called by the Board of Directors of the
Corporation and the Chief Executive Officer of the Corporation. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
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 Bylaws of the Corporation.
ARTICLE VIII
To the fullest extent permitted by applicable law, this Corporation is
authorized to provide indemnification of (and advancement of expenses to)
directors, officers, employees and agents (and any other persons to which
Delaware law permits this Corporation to provide indemnification) through Bylaw
provisions, agreements with such agents or other persons, vote of stockholders
or disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by Section 145 of the GCL, subject only to
limits created by applicable Delaware law (statutory or non-statutory), with
respect to action for breach of duty to the Corporation, its stockholders, and
others.
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No director of the Corporation shall be personally liable to the
Corporation or any stockholder for monetary damages for breach of fiduciary duty
as a director, except for any matter in respect of which such director shall be
liable under Section 174 of the GCL or any amendment thereto or shall be liable
by reason that, in addition to any and all other requirements for such
liability, such director (1) shall have breached the director's duty of loyalty
to the Corporation or its stockholders, (2) shall have acted in manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a knowing
violation of law, or (3) shall have derived an improper personal benefit. If the
GCL is hereafter amended to authorize the further elimination or limitation of
the liability of a director, the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended.
Each person who was or is made a party or is threatened to be made a
party to or is in any way involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, 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 or officer of the Corporation or a direct
or indirect subsidiary of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another entity or enterprise, or
was a director or officer of a foreign or domestic corporation which was a
predecessor corporation of the Corporation or of another entity or enterprise at
the request of such predecessor corporation, shall be indemnified and held
harmless by the Corporation, and the Corporation shall advance all expenses
incurred by any such person in defense of any such proceeding prior to its final
determination, to the fullest extent authorized by the GCL. In any proceeding
against the Corporation to enforce these rights, such person shall be presumed
to be entitled to indemnification and the Corporation shall have the burden of
proving that such person has not met the standards of conduct for permissible
indemnification set forth in the GCL. The rights to indemnification and
advancement of expenses conferred by this Article VIII shall be presumed to have
been relied upon by the directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract rights.
Said rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The Corporation may, upon written
demand presented by a director or officer of the Corporation or of a direct or
indirect subsidiary of the Corporation, or by a person serving at the request of
the Corporation as a director or officer of another entity or enterprise, enter
into contracts to provide such persons with specified rights to indemnification,
which contracts may confer rights and protections to the maximum extent
permitted by the GCL, as amended and in effect from time to time.
If a claim under this Article VIII is not paid in full by the
Corporation within sixty (60) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to its final disposition where the required
undertaking, if any, has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under the GCL for
the Corporation to indemnify the claimant for the amount claimed, but the
claimant shall be presumed to be entitled to indemnification and the Corporation
shall have the burden of proving
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that the claimant has not met the standards of conduct for permissible
indemnification set forth in the GCL.
If the GCL is hereafter amended to permit the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment, the indemnification rights conferred by this
Article VIII shall be broadened to the fullest extent permitted by the GCL, as
so amended.
ARTICLE IX
At no time shall more than 25% of the voting interest of the
Corporation be owned or controlled by persons who are not "citizens of the
United States" (as such term is defined in Title 49, United States Code, Section
40102 and administrative interpretations thereof issued by the Department of
Transportation or its successor, or as the same may be from time to time
amended) ("Non-Citizens"). In the event that Non-Citizens shall own
(beneficially or of record) or have voting control over any shares of capital
stock of the Corporation, the voting rights of such persons shall be subject to
automatic suspension to the extent required to ensure that the Corporation is in
compliance with applicable provisions of law and regulations relating to
ownership or control of a U.S. air carrier. The Bylaws shall contain provisions
to implement this Article IX, including, without limitation, provisions
restricting or prohibiting transfer of shares of voting stock to Non-Citizens
and provisions restricting or removing voting rights as to shares of voting
stock owned or controlled by Non-Citizens. Any determination as to ownership,
control or citizenship made by the Board of Directors shall be conclusive and
binding as between the Corporation and any stockholder for purposes of this
Article IX.
ARTICLE X
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. Notwithstanding the foregoing, the provisions set forth in Articles
V, VI, VII, VIII and X of this Amended and Restated Certificate of Incorporation
may not be repealed or amended in any respect without the affirmative vote of
holders at least 66-2/3% of the outstanding voting stock of the Corporation
entitled to vote at election of directors.
FOUR: The foregoing amendment and restatement has been duly adopted
by the Corporation's Board of Directors in accordance with the applicable
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware.
FIFTH: The foregoing amendment and restatement was approved by the
holders of the requisite number of shares of the Corporation in accordance with
Section 228 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned have executed this certificate on
_______________, 2002.
-------------------------------------
David Neeleman
CHIEF EXECUTIVE OFFICER
-------------------------------------
Thomas Kelly
SECRETARY
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Certificate of Incorporation - JetBlue Airways Corp.
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