Attached files
| file | filename |
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| EX-99.9 - FORM OF JHC A&R BYLAWS - AEROCENTURY CORP | exh999jhcbylaws.htm |
| EX-99.8 - FORM OF JHC A&R ARTICLES - AEROCENTURY CORP | exh998jhcarticlesofincorp.htm |
| EX-99.7 - FORM OF SERIES B SPA - AEROCENTURY CORP | exh997seriesbpsa.htm |
| EX-99.6 - FORM OF SERIES A SPA - AEROCENTURY CORP | exh996seriesapsa.htm |
| EX-99.5 - FORM OF COMMON STOCK PA - AEROCENTURY CORP | exh995jhccommonstockpurch.htm |
| EX-99.4 - FORM OF ACY A&R BYLAWS - AEROCENTURY CORP | exh994amendedandrestatedb.htm |
| EX-99.2 - FORM OF SECURITIES PURCHASE AGREEMENT - AEROCENTURY CORP | exh992secpurchase.htm |
| EX-99.1 - FORM OF PLAN SPONSOR AGREEMENT - AEROCENTURY CORP | exh991plansponsoragreemen.htm |
| 8-K - ACY REPORT ON FORM 8-K AUG 16, 2021 - AEROCENTURY CORP | a8kPSAfiled.htm |
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AEROCENTURY CORP.
Pursuant
to Sections 242, 245 and 303 of the
General
Corporation Law of the State of Delaware
AeroCentury Corp.
(the “Corporation”), a
corporation organized and existing under the General Corporation
Law of the State of Delaware (the “DGCL”), does hereby
certify as follows:
1. The
name of the Corporation is AeroCentury Corp. The original
Certificate of Incorporation was filed with the Secretary of State
of the State of Delaware on February 28, 1997.
2. An
Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of Delaware on
August 19, 1997 and a Certificate of Amendment thereto was filed
with the Secretary of State of Delaware on May 6, 2008 (as so
amended, the “Amended and Restated
Certificate”).
2. On
March 29, 2021, the Corporation and certain of its affiliates
(collectively, the “Debtors”) filed voluntary
petitions for relief under Chapter 11 of Title 11 of the United
States Bankruptcy Code (the “Bankruptcy Code”) in the
United States Bankruptcy Court for the District of Delaware (the
“Bankruptcy
Court”) in accordance with the reorganization
proceeding styled In
re AeroCentury Cop, et al, Case No. 21-10636
(JTD).
3. This
Second Amended and Restated Certificate of Incorporation restates
and further amends the Amended and Restated Certificate, and has
been duly adopted in accordance with Sections 242, 245 and 303 of
the DGCL, pursuant to the authority granted to the Corporation
under Section 303 of the DGCL to put into effect and carry out
the Combined Disclosure Statement and Joint Chapter 11 Plan of
AeroCentury Corp., and its Affiliated Debtors, filed on July 14,
2021 [DE 225], as supplemented from time to time, which was
confirmed by an order of the United States Bankruptcy Court for the
District of Delaware entered on August [*], 2021, in the jointly
administered chapter 11 cases captioned In re Aerocentury Corp., et
al. Case No. 21-10636 (JTD).
4. Provision
for amending and restating the Corporation’s Certificate of
Incorporation is contained in the order of the Bankruptcy Court
having jurisdiction under the Bankruptcy Code for the
reorganization of the Corporation.
5. The
text of the Corporation’s Amended and Restated Certificate is
amended and restated in its entirety as follows:
ARTICLE I.
Name
The
name of the Corporation is AeroCentury Corp.
ARTICLE II.
Registered Office
The
address of the Corporation's registered office in the State of
Delaware is 251 Little Falls Drive, in the City of Wilmington,
County of New Castle, Delaware 19808. The name of its registered
agent at such address is Corporation Service Company.
ARTICLE III.
Purpose
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 DGCL
ARTICLE IV.
Capital Stock
(A)
Authorized Capital
Stock.
The
total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 15,000,000 shares of
capital stock, consisting of (i) 13,000,000 shares of common
stock, par value $0.001 per share (the “Common Stock”), and
(ii) 2,000,000 shares of preferred stock, par value $0.001 per
share (the “Preferred
Stock”).
Notwithstanding
anything to the contrary contained herein, the rights and
preferences of the Common Stock shall at all times be subject to
the rights and preferences of the Preferred Stock as may be set
forth in this Second Amended and Restated Certificate of
Incorporation or one or more certificates of designations filed
with the Secretary of State of the State of Delaware from time to
time in accordance with the DGCL and this Second Amended and
Restated Certificate of Incorporation. The number of authorized
shares of Common Stock or Preferred Stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) from time to time by the affirmative vote of the
holders of at least a majority of the voting power of the
Corporation’s then outstanding shares of capital stock
entitled to vote thereon, voting together as a single class,
irrespective of the provisions of Section 242(b)(2) of the
DGCL (or any successor provision thereto), and no vote of the
holders of the Common Stock or the Preferred Stock voting
separately as a class or series shall be required therefor unless a
vote of any such holder is required pursuant to this Second Amended
and Restated Certificate of Incorporation (including any
certificate of designation relating to any series of Preferred
Stock).
(B)
Common Stock.
The
voting powers, designations, preferences and relative,
participating, optional or other special rights and such
qualifications, limitations or restrictions of the Common Stock, in
addition to those set forth elsewhere herein, are as
follows:
(1) Voting
Rights. Each holder of shares of Common Stock shall be
entitled to vote at all meetings of the stockholders and to cast
one vote for each outstanding share of Common Stock held by such
holder on all matters on which stockholders are entitled to vote
generally. Except as otherwise required by law or this Article IV,
the holders of each class of the Common Stock shall vote together
as a single class. Notwithstanding the foregoing, except as
otherwise required by law, holders of Common Stock shall not be
entitled to vote on any amendment to this Second Amended and
Restated Certificate of Incorporation (including any certificate of
designation relating to any series of Preferred Stock) that relates
solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such
series, to vote thereon pursuant to this Second Amended and
Restated Certificate of Incorporation (including any certificate of
designation relating to any series of Preferred Stock) or pursuant
to the DGCL.
(2) Dividends
and Distributions. Subject to the prior rights of the
holders of all series of Preferred Stock at the time outstanding
having prior rights as to dividends or other distributions, the
holders of shares of Common Stock shall be entitled to receive,
when, as and if declared by the Board of Directors of the
Corporation (the “Board of Directors”), out
of the assets of the Corporation legally available therefor, such
dividends and other distributions as may be declared from time to
time by the Board of Directors and shall share equally on a per
share basis in all such dividends and other
distributions.
(3) Liquidation.
Subject to the prior rights of creditors of the Corporation,
including without limitation the payment of expenses relating to
any liquidation, dissolution or winding up of the Corporation, and
the holders of all series of Preferred Stock at the time
outstanding having prior rights as to distributions upon
liquidation, dissolution or winding up of the Corporation, in the
event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary, the holders of shares
of Common Stock shall be entitled to receive their ratable and
proportionate share of the remaining assets of the Corporation.
Except as expressly provided in this Second Amended and Restated
Certificate of Incorporation or in one or more certificates of
designation with respect to series of Preferred Stock, a merger or
consolidation of the Corporation with any other corporation or
other entity, or a sale or conveyance of all or any part of the
assets of the Corporation (which shall not in fact result in the
liquidation of the Corporation and the distribution of assets to
its stockholders) shall not be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation.
(C)
Preferred Stock.
The
Board of Directors is hereby expressly authorized to provide for
the issuance of all or any shares of the Preferred Stock in one or
more series, and to fix for each such series the voting powers, if
any, 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 issuance of such series, including,
without limitation, the authority to provide:
(1) the
number of shares included in such series, and the distinctive
designation of that series;
(2) the
dividend rate (or method of determining such rate) on the shares of
any series, whether dividends shall be cumulative and, if so, from
which date or dates, and the relative rights of priority, if any,
of payment of dividends on shares of that series;
(3) whether
any series shall have voting rights, in addition to the voting
rights provided by applicable law, and, if so, the number of votes
per share and the terms and conditions of such voting
rights;
(4) whether
any series shall have conversion privileges and, if so, the terms
and conditions of conversion, including provision for adjustment of
the conversion rate upon such events as the Board of Directors
shall determine;
(5) whether
the shares of any series shall be redeemable and, if so, the terms
and conditions of such redemption, including the date or dates upon
or after which they shall be redeemable and the amount per share
payable in case of redemption, which amount may vary under
different conditions and at different redemption
dates;
(6) whether
any series shall have a sinking fund for the redemption or purchase
of shares of that series, and, if so, the terms and amount of such
sinking fund;
(7) the
rights of the shares of any series in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(8) any
other powers, preferences, rights, qualifications, limitations, and
restrictions of any series.
The
powers, preferences and relative, participating, optional and other
special rights of the shares of each series of Preferred Stock, and
the qualifications, limitations or restrictions thereof, if any,
may differ from those of any and all other series at any time
outstanding. Unless otherwise provided in the resolution or
resolutions providing for the issuance of such series of Preferred
Stock, shares of Preferred Stock, regardless of series, which shall
be issued and thereafter acquired by the Corporation through
purchase, redemption, exchange, conversion or otherwise shall
return to the status of authorized but unissued Preferred Stock,
without designation as to series of Preferred Stock, and the
Corporation shall have the right to reissue such
shares.
ARTICLE V.
Board of Directors
(A)
Powers of the Board of
Directors.
The
business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(B)
Number of
Directors.
Subject
to the rights of the holders of Preferred Stock, the Board of
Directors shall consist of five (5) or more members, the exact
number of which shall be fixed by, or in the manner provided in,
the Corporation’s Bylaws.
(C)
Term of Office.
Each
director shall hold office until the next annual meeting of the
stockholders and until such director’s successor is duly
elected and qualified, or until such director’s earlier
death, resignation, disqualification or removal. A director may
resign at any time upon notice to the Corporation as provided in
the Corporation’s Bylaws.
(D)
No Cumulative Voting. No
stockholder will be permitted to cumulate votes at any election of
directors.
(E)
Powers and
Authority.
In
addition to the powers and authority expressly conferred upon them
herein or by statute, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the DGCL and this Second Amended and Restated
Certificate of Incorporation.
ARTICLE VI.
Stockholder Action
(A)
Election of
Directors.
Elections of
directors need not be by written ballot except and to the extent
provided in the Corporation’s Bylaws.
(B)
Advance Notice.
Advance
notice of nominations for the election of directors or proposals or
other business to be considered by stockholders, which are made by
any stockholder of the Corporation, shall be given in the manner
and to the extent provided in the Corporation’s
Bylaws.
ARTICLE VII.
Limitation of Director Liability
No
director shall be personally liable to the Corporation or to any of
its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent such elimination from liability
or limitation thereof is not permitted under the DGCL as the same
exists or may hereafter be amended. If the DGCL is amended
hereafter to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
authorized by the DGCL, as so amended. Any repeal or modification
of this Article VII, because of amendments or modifications of the
DGCL or otherwise, shall not adversely affect any right or
protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions
occurring prior to the effective date of such repeal or
modification.
ARTICLE VIII.
Business Combinations
The
Corporation hereby elects not to be governed by Section 203 of
the DGCL.
ARTICLE IX.
Amendment of Bylaws
In
furtherance and not in limitation of the powers conferred upon it
by the laws of the State of Delaware, the Board of Directors shall
have the power to adopt, amend or repeal the Corporation’s
Bylaws by the affirmative vote of a majority of the entire Board of
Directors (assuming no vacancies on the Board of Directors). The
Corporation’s Bylaws may also be adopted, amended, altered or
repealed by the affirmative vote of at least a majority of the
voting power of the Corporation’s issued and outstanding
shares of capital stock entitled to vote generally in the election
of directors, voting together as a single class.
ARTICLE X.
Amendment of Certificate of Incorporation
The
Corporation reserves the right at any time, and from time to time,
to amend or repeal any provision contained in this Second Amended
and Restated Certificate of Incorporation, and add other provisions
authorized by the laws of the State of Delaware at the time in
force, in the manner now or hereafter prescribed by the DGCL; and
all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Second Amended and Restated
Certificate of Incorporation (as amended) are granted subject to
the rights reserved in this ARTICLE X.
ARTICLE XI.
Forum Selection
Unless
the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery of the State of Delaware
shall, to the fullest extent permitted by law, be the sole and
exclusive forum for (a) any derivative action or proceeding
brought on behalf of the Corporation, (b) any action asserting
a claim of breach of a fiduciary duty owed by any director,
officer, or stockholder of the Corporation to the Corporation or
the Corporation’s stockholders, (c) any action asserting
a claim arising pursuant to any provision of the DGCL or as to
which the DGCL confers jurisdiction on the Court of Chancery of the
State of Delaware, or (d) any action asserting a claim
governed by the internal affairs doctrine. Any person or entity
purchasing or otherwise acquiring or holding any interest in shares
of the capital stock of the Corporation shall be deemed to have
notice of and consented to the provisions of this Article
XI.
*
* *
4825-3780-6326.1
IN WITNESS WHEREOF, the Corporation
has caused this Second Amended and Restated Certificate of
Incorporation to be executed on its behalf on September __,
2021.
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AEROCENTURY CORP.
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By:
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Michael
G. Magnusson
President
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4825-3780-6326.1 [Signature Page to Second
Amended and Restated Certificate of
Incorporation]