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EXHIBIT 3.08
FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Exhibit Index
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
AEROCENTURY CORP.
AeroCentury Corp., a corporation duly organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of this corporation is AeroCentury Corp., and the
date of filing of its original certificate of incorporation (the "Certificate
of Incorporation") with the Secretary of State is February 28, 1997.
2. The Board of Directors duly adopted resolutions proposing to
amend and restate the Certificate of Incorporation of this Corporation,
declaring said amendment and restatement to be advisable and in the best
interest of this Corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefore, which resolutions setting forth the proposed amendment
and restatement as follows:
ARTICLE I
The name of the Corporation is AeroCentury Corp.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle,
Delaware 19805. The name of its registered agent at such address is
Corporation Service Company.
ARTICLE III
The nature of the business of the Corporation and the purposes for
which it is organized are to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law.
ARTICLE IV
This Corporation is authorized to issue two classes of stock to be
designated, respectively, "Preferred Stock" and "Common Stock." The total
number of shares of stock which the Corporation shall have authority to issue
is 5,000,000, consisting of 2,000,000 shares of Preferred Stock, each with a
par value of $0.001 per share, and 3,000,000 shares of Common Stock, each with
a par value of $0.001 per share.
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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 (the "Board") is hereby authorized to provide for the issuance of
shares of Preferred Stock in one or more series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter referred
to as "Preferred Stock Designation"), to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the
Board with respect to each series shall include, but not be limited to,
determination of the following:
(a) The designation of the series, which may be by distinguishing
number, letter or title.
(b) The number of shares of the series, which number the Board
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) The amounts payable on, and the preferences, if any, of shares
of the series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative.
(d) Dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any, for shares
of the series.
(f) The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any, of shares
of the series in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation.
(h) Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series of such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made.
(i) Restrictions on the issuance of shares of the same series or
of any other class or series.
(j) The voting rights, if any, of the holders of shares of the
series.
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The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Except as may otherwise be provided by
applicable law, in this Amended and Restated Certificate of Incorporation or in
a Preferred Stock Designation, the holders of shares of Preferred Stock and
Common Stock shall be entitled to one vote for each such share upon all
questions presented to the stockholders.
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest
in, such share on the part of any other person, whether or not the Corporation
shall have notice thereof, except as otherwise expressly provided by applicable
law.
ARTICLE V
The business and affairs of the Corporation shall be managed by, or
under the direction of, the Board. The number of directors of the Corporation
shall be fixed from time to time by a bylaw or amendment thereof duly adopted
by the Board of Directors or by 66 2/3 percent of the voting power of the then
outstanding capital stock of the Corporation entitled to vote ("Voting Stock").
Any director, or the entire Board, may be removed from office at any time, but
only for cause and only by the affirmative vote of at least 66 2/3 percent of
the total voting power 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. Unless and except to the extent that the bylaws of
the Corporation shall so require, the elections of directors of the Corporation
need not be by written ballot.
Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66 2/3 percent of the Voting Stock, voting together as a
single class, shall be required to amend, alter, repeal or adopt any provision
inconsistent with Article V.
ARTICLE VI
In furtherance of, and not in limitation of, the powers conferred by
law, the Board is expressly authorized and empowered:
(a) to adopt, alter, amend or repeal the bylaws of the
Corporation; provided, however, that the bylaws adopted by the Board under the
powers hereby conferred may be amended or repealed by the Board or by the
stockholders having voting power with respect thereto, provided, further that,
notwithstanding any other provision of this Certificate of Incorporation or any
provisions of law which might otherwise permit a lesser vote or not vote,
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but in addition to any affirmative vote of the holders of any particular class
or series of the stock required by law or this Amended and Restated Certificate
of Incorporation, the affirmative vote of the holders of at least 66 2/3
percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required in order for the stockholders to
adopt, alter, amend or repeal any bylaw; and
(b) from time to time to determine whether and to what extent, and
what times and places, and under what conditions and regulations, the accounts
and books of the Corporation, or any of them, shall be open to inspection of
stockholders; and, except as so determined or as expressly provided in this
Amended and Restated Certificate of Incorporation or in any Preferred Stock
Designation, no stockholder shall have any right to inspect any account, book
or document of the Corporation other than such rights as may be conferred by
applicable law.
The Corporation may in its bylaws confer powers upon the Board in
addition to the foregoing and in addition to the powers and authorities
expressly conferred upon the Board by applicable law. Notwithstanding anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 66 2/3 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to amend, alter, repeal or adopt any provision
inconsistent with paragraph (a) of this Article VI.
ARTICLE VII
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders. Notwithstanding anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, the affirmative vote of at least 66 2/3 percent of the voting power
of the then outstanding Voting Stock, voting together as a single class, shall
be required to amend, alter, repeal or adopt any provision inconsistent with
this Article VII.
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ARTICLE VIII
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except as to liability (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 which involve intentional misconduct or a
knowing violation of law, (iii) for violations of Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to eliminate or limit further the liability of a director,
then, in addition to the elimination and limitation of liability provided by
the preceding sentence, the liability of each director shall be eliminated or
limited to the fullest extent provided or permitted by the Delaware General
Corporation Law, as amended. Any repeal or modification of this Article VIII
shall not adversely affect any right or protection of a director under this
Article VIII, as in effect immediately prior to such repeal or modification,
with respect to any liability that would have accrued, but for this Article
VIII, prior to such repeal or modification.
ARTICLE IX
The Corporation shall, to the fullest extent permitted by Delaware
law, as in effect from time to time, indemnify any persons against all
liability and expense (including attorneys' fees) incurred by reason of the
fact that he is or was a director or officer of the Corporation or, while
serving as a director or officer of the Corporation, he is or was serving at
the request of the Corporation as a director, officer, partner or trustee of,
or in any similar managerial or fiduciary position of, or as an employee or
agent of, another corporation, partnership, joint venture, trust, association
or other entity. Expenses (including attorneys' fees) incurred in defending an
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding to the full extent and
under the circumstances permitted by Delaware law. The Corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Corporation against any
liability asserted against and incurred by such person in any such capacity or
arising out of such person's position, whether or not the Corporation would
have the power to indemnify against such liability under the provisions of this
Article IX. The indemnification provided by this Article IX shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under this Amended and Restated Certificate of Incorporation, any bylaw,
agreement, vote of stockholders or disinterested directors, statute or
otherwise and shall inure to the benefit of their heirs, executors, and
administrators. The provisions of this Article IX shall not be deemed to
preclude the Corporation from indemnifying other persons from similar or other
expense and liabilities as the Board of Directors or the stockholder may
determine in a specific instance or by resolution of general applications.
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ARTICLE X
The Corporation shall have authority, to the fullest extent now or
hereafter permitted by the Delaware General Corporation Law, or by any other
applicable law, to enter into any contract or transaction with one or more of
its directors or officers, or with any corporation, partnership, joint venture,
trust, association, or other entity in which one or more of its directors or
officers are directors or officers, or have a financial interest,
notwithstanding such relationships and notwithstanding the fact that the
director of officer is present at or participates in the meeting of the Board
or committee thereof which authorizes the contact or transaction.
ARTICLE XI
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of this 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 this Corporation.
ARTICLE XII
This 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.
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3. The foregoing amendment was approved by the holders of the
requisite number of shares of said Corporation in accordance with Section 228
of the Delaware General Corporation Law.
4. This Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with the provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, AeroCentury Corp., has caused this Amended
and Restated Certificate of Incorporation to be signed by its duly authorized
officers as of this ____ day of March, 1997.
AEROCENTURY CORP.
By:
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Neal D. Crispin, President
Attest:
By:
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Toni Perazzo, Secretary
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