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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JUNE 8, 1998
WILLIS LEASE FINANCE CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
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(STATE OR OTHER JURISDICTION OF INCORPORATION
0-28774 68-0070656
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(COMMISSION (IRS EMPLOYER
FILE NUMBER) IDENTIFICATION NO.)
2320 MARINSHIP WAY, SUITE 300, CALIFORNIA 94965
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(415) 331-5281
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(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
180 HARBOR DRIVE, SUITE 200, SAUSALITO, CALIFORNIA 94965
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
<PAGE>
ITEM 5 OTHER EVENTS
Effective June 8, 1998, Willis Lease Finance Corporation, a California
corporation ("Willis-California") completed the change of its state of
incorporation from California to Delaware through a merger of Willis-California
with and into its wholly owned subsidiary, Willis Lease Finance Corporation, a
Delaware corporation (the "Company"). This change in the state of
incorporation was approved by Willis-California's Board of Directors on March
12, 1998 and by the holders of a majority of Willis-California's outstanding
shares of common stock at the Annual Meeting of Shareholders held on May 12,
1998.
As the surviving corporation in the merger, the Company succeeded to all
the business, properties, assets and liabilities of Willis-California. The
reincorporation will not result in any change in Willis-California's business,
assets or liabilities, will not cause Willis-California's corporate
headquarters to be moved and will not result in any relocation of management or
other employees.
As a result of the merger, each outstanding share of Willis-California's
common stock, no par value per share ("Willis-California Common Stock") was
automatically converted into one share of the Company's common stock, par value
$0.01 per share ("Company Common Stock"). Each stock certificate representing
issued and outstanding shares of Willis-California Common Stock will continue
to represent the same number of shares of Company Common Stock. Shareholders
are not required to undertake a mandatory exchange of shares. The Company
Common Stock will continue to be traded on the Nasdaq National Market under the
symbol WLFC.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
2.01 Agreement and Plan of Merger dated March 12, 1998
between Willis-California and the Company
4.01 Certificate of Incorporation of the Company, as filed
with the Delaware Secretary of State on March 12, 1998
4.02 Certificate of Amendment of Certificate of
Incorporation of the Company, as filed with the
Delaware Secretary of State on May 6, 1998
4.03 Bylaws of the Company, as adopted on March 12, 1998
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Willis Lease Finance Corporation
Date: June 23, 1998 By: /s/ James D. McBride
--------------------------------------
James D. McBride
Chief Financial Officer
3
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
2.01 Agreement and Plan of Merger dated March 12, 1998 between
Willis-California and the Company
4.01 Certificate of Incorporation of the Company, as filed with
the Delaware Secretary of State on March 12, 1998
4.02 Certificate of Amendment of Certificate of Incorporation of
the Company, as filed with the Delaware Secretary of State
on May 6, 1998
4.03 Bylaws of the Company, as adopted on March 12, 1998
</TABLE>
4
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is dated as of
March 12, 1988, and is entered into by and between WILLIS LEASE FINANCE
CORPORATION, a California corporation ("Willis-California"), and WILLIS LEASE
FINANCE CORPORATION, a Delaware corporation ("Willis-Delaware"). Willis-
California and Willis-Delaware are hereinafter sometimes collectively referred
to as the "Constituent Corporations".
RECITALS
A. Willis-California desires to merge with and into Willis-Delaware and
Willis-Delaware desires to merge with Willis-California, all upon the terms and
subject to the conditions of this Merger Agreement.
B. Willis-California was incorporated in 1985 and is a corporation duly
organized and existing under the laws of the State of California. Its
authorized capital stock consists of 5,000,000 shares of Preferred Stock, no
par value per share, and 20,000,000 shares of Common Stock, no par value per
share (the "Willis-California Common Stock"), of which no shares of Preferred
Stock and 7,258,098 shares of Common Stock were issued and outstanding on
April 30, 1998.
C. Willis-Delaware was incorporated on March 12, 1998. Its authorized
capital stock consists of 5,000,000 shares of Preferred Stock, par value $0.01
per share, and 20,000,000 shares of Common Stock, par value $0.01 per share
(the "Willis-Delaware Common Stock"), of which no shares of Preferred Stock and
100 shares of Common Stock were issued and outstanding on April 30, 1998. All
outstanding shares of Willis-Delaware Common Stock shares are held by and in
the name of Willis-California.
D. The Board of Directors of Willis-California has determined that, for
the purpose of effecting the reincorporation of Willis-California in the State
of Delaware, it is advisable and in the bests interests of Willis-California
and its shareholders that Willis-California merge with and into Willis-Delaware
upon the terms and conditions herein provided.
E. The Board of Directors of Willis-California has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby and
recommending that the existing shareholders of Willis-California (individually,
a "Shareholder", and collectively, the "Shareholders") approve this Merger
Agreement and the transactions contemplated hereby;
F. The Board of Directors of Willis-Delaware has adopted resolutions
approving this Merger Agreement and the transactions contemplated hereby. The
sole shareholder of Willis-Delaware has approved this Merger Agreement and the
transactions contemplated hereby.
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NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto agree as follows:
ARTICLE I
MERGER
Section 1.1. THE MERGER. In accordance with the provisions of this
Merger Agreement, the California General Corporation Law (the "CGCL") and the
Delaware General Corporation Law (the "DGCL"), Willis-California shall be
merged with and into Willis-Delaware (the "Merger"), the separate existence of
Willis-California shall cease and Willis-Delaware shall be the surviving
corporation (hereinafter sometimes called the "Surviving Corporation") and
shall continue its corporate existence under the laws of the State of Delaware.
The name of the Surviving Corporation shall be "Willis Lease Finance
Corporation".
Section 1.2. FILING AND EFFECTIVENESS. The Merger shall become
effective when the following actions have been completed:
(a) This Agreement and the Merger shall have been adopted
and approved by the shareholders of Willis-California in accordance with the
requirements of the CGCL;
(b) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the DGCL shall have
been filed with the Secretary of State of the State of Delaware;
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the CGCL shall have
been filed with the Secretary of State of the State of California.
The date and time when the Merger shall become effective is herein
referred to as the "Effective Date".
Section 1.3. EFFECT OF THE MERGER. Upon the Effective Date, the
separate existence of Willis-California shall cease and Willis-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date;
(ii) shall be subject to all actions previously taken by its and Willis-
California's Board of Directors; (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of Willis-California in the
manner more fully set forth in Section 259 of the DGCL; (iv) shall continue to
be subject to all of the debts, liabilities and obligations of Willis-Delaware
as constituted immediately prior to the Effective Date; and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
Willis-California in the same manner as if Willis-Delaware had itself incurred
them, all as more fully provided under the applicable provisions of the DGCL
and the CGCL.
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ARTICLE II
CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 2.1. CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate
of Incorporation and Bylaws of Willis-Delaware as in effect immediately prior
to the Effective Date shall continue in full force and effect as the
Certificate of Incorporation and Bylaws of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
Section 2.2. DIRECTORS AND OFFICERS. The directors and officers of
Willis-Delaware immediately prior to the Effective Date shall be the directors
and officers of the Surviving Corporation until their respective successors are
duly elected or appointed and qualified or until as otherwise provided by law,
or by the Certificate of Incorporation and Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
Section 3.1. WILLIS-CALIFORNIA COMMON STOCK. Upon the Effective Date,
each share of Willis-California Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted automatically into one (1) fully paid and nonassessable, issued and
outstanding share of Common Stock, par value $0.01 per share, of the Surviving
Corporation.
Section 3.2. WILLIS-CALIFORNIA OPTIONS AND STOCK PURCHASE RIGHTS.
(a) Upon the Effective Date, the Surviving Corporation
shall assume and continue the stock option plans and all other employee benefit
plans of Willis-California and all of such plans shall become the lawful
obligations of the Surviving Corporation and shall be implemented and
administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Each outstanding and
unexercised option or other right to purchase Willis-California Common Stock
shall become an option or right to purchase the Surviving Corporation's Common
Stock on the basis of one share of the Surviving Corporation's Common Stock for
each share of Willis-California Common Stock issuable pursuant to any such
option or stock purchase right, on the same terms and conditions and at an
exercise price per share equal to the exercise price applicable to any such
Willis-California option or stock purchase right.
(b) A number of shares of the Surviving Corporation's
Common Stock shall be reserved for issuance upon the exercise of options and
stock purchase rights equal to the number of shares of Willis-California Common
Stock so reserved immediately prior to the Merger.
3
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Section 3.3. WILLIS-DELAWARE COMMON STOCK. Upon the Effective Date,
each share of Willis-Delaware Common Stock, par value $0.01 per share, issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Willis-Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
Section 3.4. EXCHANGE OF CERTIFICATES. After the Effective Date, each
holder of an outstanding certificate representing shares of Willis-California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Willis-Delaware or its transfer agent, and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock
into which the surrendered shares were converted as herein provided. Unless
and until so surrendered, each outstanding certificate theretofore representing
shares of Willis-California Common Stock shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's Common Stock into
which such shares of Willis-California Common Stock were converted in the
Merger.
The registered owner on the books and records of Willis-California of any
shares of stock represented by such outstanding certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to Willis-Delaware its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of Common Stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Willis-California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation.
If any certificate for shares of Willis-Delaware stock is to be issued in
a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
Willis-Delaware or its transfer agent any transfer or other taxes payable by
reason of issuance of such new certificates in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of Willis-Delaware that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
Section 4.1. COVENANTS OF WILLIS-DELAWARE. Willis-Delaware covenants
and agrees that it will, on or before the Effective Date:
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(a) qualify to do business as a foreign corporation in the
State of California and in connection therewith irrevocably appoint an agent
for the service of process as required under the provisions of Section 2105 of
the CGCL;
(b) file any and all documents with the California
Franchise Tax Board necessary for the assumption by Willis-Delaware of all of
the Franchise Tax liabilities of Willis-California; and
(c) take such other actions as may be required by the
CGCL.
Section 4.2. FURTHER ASSURANCES. From time to time, as and when
required by Willis-Delaware or by its successors and assigns, there shall be
executed and delivered on behalf of Willis-California such deeds and other
instruments, and there shall be taken or caused to be taken by Willis-
California and Willis-Delaware such further and other actions, as shall be
appropriate or necessary in order to vest or perfect in Willis-Delaware title
to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Willis-California, and
otherwise to carry out the purposes and intent of this Agreement, and the
officers and directors of Willis-Delaware are fully authorized in the name and
on behalf of Willis-California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
Section 4.3. ABANDONMENT. At any time before the Effective Date, this
Agreement may be terminated and the Merger contemplated hereby may be abandoned
by the Board of Directors of either Willis-California or of Willis-Delaware, or
of both, notwithstanding approval of this Agreement by the shareholders of
Willis-California, by the sole shareholder of Willis-Delaware, or by both.
Section 4.4. AMENDMENT. The Board of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of Delaware and California, provided that an amendment made subsequent
to the adoption of this Agreement by the stockholders of either Constituent
Corporation shall not: (a) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation; (c) alter or change any of the
terms or conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of any
Constituent Corporation.
Section 4.5. GOVERNING LAW. Except as required by California law, this
Merger Agreement shall be governed by the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable Delaware
principles of conflicts of law.
Section 4.6. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Willis Lease Finance Corporation, a
Delaware corporation, and Willis Lease Finance Corporation, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
WILLIS LEASE FINANCE CORPORATION,
a Delaware corporation
By /s/ Charles F. Willis
-----------------------------------
Charles F. Willis, IV, President
ATTEST:
/s/ Lynn Mailliard
- -----------------------------------
Lynn Mailliard, Corporate Secretary
WILLIS LEASE FINANCE CORPORATION,
a California corporation
By /s/ James D. McBride
------------------------------------
James D. McBride, Executive Vice
President
ATTEST:
/s/ Lynn Mailliard
- -----------------------------------
Lynn Mailliard, Secretary
6
<PAGE>
CERTIFICATE OF INCORPORATION
OF
WILLIS LEASE FINANCE CORPORATION
ARTICLE I
NAME OF CORPORATION
The name of this corporation is WILLIS LEASE FINANCE CORPORATION.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the corporation in the State of
Delaware is 9 East Loockerman Street, City of Dover, County of Kent, and the
name of its registered agent at that address is National Registered Agents,
Inc.
ARTICLE III
PURPOSE
The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
(a) The corporation shall be authorized to issue two classes of shares of
stock to be designated, respectively, "Preferred Stock" and "Common Stock"; the
total number of shares which the corporation shall have authority to issue is
Two Thousand (2,000); the total number of shares of Preferred Stock shall be
One Thousand (1,000) and each such share shall have a par value of one cent
($0.01); and the total number of shares of Common Stock shall be One Thousand
(1,000) and each such share shall have a par value of one cent ($0.01).
(b) The shares of Preferred Stock may be issued from time to time in one
or more series. The board of directors is hereby vested with authority to fix
by resolution or resolutions the designations and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, including without limitation the dividend
rate, conversion or exchange rights, redemption price and liquidation
preference, of any series of shares of Preferred Stock, and to fix the number
of shares constituting any such series, and to increase or decrease the number
of shares of any such series (but not below the number of shares thereof then
outstanding). In case the number of shares of any such series shall be so
<PAGE>
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution or resolutions originally
fixing the number of shares of such series.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator of the corporation
is: Jeanne Carnahan, c/o National Corporate Research, LTD, 9 East Loockerman
Street, Dover, Delaware 19901.
ARTICLE VI
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws of
the corporation shall so provide.
ARTICLE VII
STAGGERED BOARD
(a) The number of directors which shall constitute the whole board of
directors of the corporation shall be specified in the bylaws of the
corporation.
(b) Effective on the filing of the Certificate of Incorporation of the
corporation ("Incorporation Date"), the board shall be divided into three
classes: Class I, Class II and Class III. Such classes shall be as nearly
equal in number of directors as possible. Directors in Class I shall serve for
a term ending at the first annual meeting held after the Incorporation Date,
directors in Class II shall serve for a term ending at the second annual
meeting held after the Incorporation Date, and directors in Class III shall
serve for a term ending at the third annual meeting held after the
Incorporation Date. Thereafter, each director shall serve for a term ending at
the third annual stockholders meeting following the annual meeting at which
such director was elected. The foregoing notwithstanding, each director shall
serve until his successor shall have been duly elected and qualified, unless he
shall resign, die, become disqualified or disabled, or shall otherwise be
removed.
(c) At each annual election held after the Incorporation Date, the
directors chosen to succeed those whose terms then expire shall be identified
as being of the same class as the directors they succeed, unless, by reason of
any intervening changes in the authorized number of directors, the board of
directors shall designate one or more directorships whose term then expires as
directorships of another class in order more nearly to achieve equality in the
number of directors among the classes. When the board of directors fills a
vacancy resulting from the resignation, death, disqualification or removal of a
director, the director chosen to fill that vacancy shall be of the same class
as the director he succeeds, unless, by reason of any previous changes in the
authorized number of directors, the board of directors shall designate the
vacant
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directorship as a directorship of another class in order more nearly to
achieve equality in the number of directors among the classes.
(d) Notwithstanding the rule that the three classes shall be as nearly
equal in number of directors as possible, in the event of any change in the
authorized number of directors each director then continuing to serve as such
will nevertheless continue as a director of the class of which he is a member,
until the expiration of his current term or his earlier resignation, death,
disqualification or removal. If any newly created directorship or vacancy on
the board of directors, consistent with the rule that the three classes shall
be as nearly equal in number of directors as possible, may be allocated to one
or two or more classes, the board of directors shall allocate it to that of the
available class whose term of office is due to expire at the earliest date
following such allocation.
(e) During any period when the holders of Preferred Stock or any one or
more series thereof, voting as a class, shall be entitled to elect a specified
number of directors by reason of dividend arrearages or other contingencies
giving them the right to do so, then and during such time as such right
continues (1) the then otherwise authorized number of directors shall be
increased by such specified number of directors, and the holders of the
Preferred Stock or such series thereof, voting as a class, shall be entitled to
elect the additional directors as provided for pursuant to the provisions of
such Preferred Stock or series; (2) each such additional director shall not be
a member of Class I, Class II or Class III, but shall serve until the next
annual meeting or until his successor shall be elected and shall qualify, or
until his right to hold such office terminates pursuant to the provisions of
such Preferred Stock or series, whichever is earlier; and (3) whenever the
holders of such Preferred Stock or series thereof are divested of such rights
to elect a specified number of directors, voting as a class, pursuant to the
provisions of such Preferred Stock or series, the terms of office of all
directors elected by the holders of such Preferred Stock or series, voting as a
class pursuant to such provisions, or elected to fill any vacancies resulting
from the resignation, death, disqualification or removal of directors so
elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
(f) Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any director, or the entire board of directors, may be
removed from office at any time, but only (1) for cause, and (2) by the
affirmative vote of the holders of a majority of the Voting Stock. For
purposes of this Certificate of Incorporation, "Voting Stock" means all
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors of the Corporation, and each reference
to a percentage or portion of shares of Voting Stock shall refer to such
percentage or portion of the votes entitled to be cast by such shares.
ARTICLE VIII
LIMITATION OF DIRECTOR LIABILITY
To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or may hereafter be amended, a director of the corporation
shall not be liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director.
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If the Delaware General Corporation Law is amended after the date of the
filing of this Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended from time to time. No repeal or modification of this Article VIII by
the stockholders shall adversely affect any right or protection of a director
of the corporation existing by virtue of this Article VIII at the time of
such repeal or modification.
ARTICLE IX
BYLAWS
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.
Bylaws may not be made, repealed, altered, amended or rescinded by the
stockholders of the corporation except by the vote of the holders of not less
than eighty percent (80%) of the outstanding Voting Stock of the corporation,
considered for purposes of this Article IX as one class.
ARTICLE X
RESTRICTIONS ON CERTAIN AMENDMENTS TO CERTIFICATE OF INCORPORATION
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation. Notwithstanding the foregoing,
the provisions set forth in this Article X and in Articles IV, VII, IX, XI, XII
and XIII may not be repealed, amended or otherwise modified, directly or
indirectly, in any respect; provided, however, that any of the foregoing
Articles may be repealed or amended in any respect if such repeal or amendment
is approved by such vote as may be required under applicable law and in
addition thereto by the affirmative vote of the holders, voting together as a
single class, of not less than eighty percent (80%) of the outstanding Voting
Stock of the corporation.
ARTICLE XI
CALL OF SPECIAL MEETING OF STOCKHOLDERS
Special meetings of the stockholders of the corporation for any purpose or
purposes may be called at any time by the board of directors or by the Chairman
of the Board or by the President of the corporation, but such special meetings
may not be called by any other person or persons; provided, however, that if
and to the extent that any special meeting of the stockholders may be called by
any other person or persons specified in any provisions of any certificate
filed
4
<PAGE>
under Section 151(g) of the Delaware General Corporation Law (or its
successor statute as in effect from time to time hereunder), then such
special meeting may also be called by the person or persons, in the manner,
at the times and for the purposes so specified.
ARTICLE XII
NO ACTION BY WRITTEN CONSENT
Subject to the rights of holders of any series of Preferred Stock relating
to the ability of such holders of such Preferred Stock to take action by a
consent or consents in writing, no action shall be taken by the stockholders
except at an annual or special meeting of stockholders. No action shall be
taken by stockholders by written consent.
ARTICLE XIII
BUSINESS COMBINATIONS
(a) VOTE REQUIRED FOR CERTAIN BUSINESS COMBINATIONS. In addition to any
affirmative vote required by law or by any other provision of this Certificate
of Incorporation, and in addition to any voting rights granted or to be held by
holders of Preferred Stock, the affirmative vote of the holders of not less
than eighty percent (80%) of the outstanding Voting Stock of the Corporation,
considered for purposes of this Article XIII as one class, shall be required
for the approval or authorization of any "business combination" (as hereinafter
defined) with any "other entity" (as hereinafter defined) if, as of the record
date for the determination of stockholders entitled to notice thereof and to
vote thereon, such other entity is, directly or indirectly, the "beneficial
owner" of more than 5% of the outstanding shares of the Common Stock of the
Corporation.
(b) EXCEPTIONS.
(i) Section (a) of this Article XIII shall not be applicable to
any particular business combination, and such business combination shall
require only such affirmative vote as may be required by law, by any voting
rights granted to or held by holders of Preferred Stock and by any other
provision of this Certificate of Incorporation, if the proposed business
combination shall have been approved by a majority of the "continuing
directors" (as hereinafter defined).
(ii) Section (a) of this Article XIII shall not be applicable to
any particular business combination in which shareholders of the Corporation,
in one or more transactions, are to receive cash, property, securities or other
consideration in exchange for their shares of capital stock of the Corporation,
and such business combination shall require only such affirmative vote as may
be required by law, by any voting rights granted to or held by holders of
Preferred Stock and by any other provision of this Certificate of
Incorporation, if the following condition is met: the cash plus the fair market
value of the property, securities or other consideration to be received per
share by holders of the Common Stock of the Corporation in the business
combination is not less than the highest per share price (including (i)
brokerage
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commissions, (ii) soliciting dealers' fees, (iii) dealer-manager
compensation, and (iv) other expenses, including, but not limited to, costs
of newspaper advertisements, printing expenses and attorneys' fees) paid by
such other entity in acquiring any of its holdings of the Corporation's
Common Stock (1) within the period of eighteen (18) months immediately prior
to and including the date of the most recent public announcement of the
proposal of the business combination or (2) in the transaction or series of
transactions in which it acquired more than 5% of the outstanding shares of
the Common Stock of the Corporation.
(iii) Section (a) of this Article XIII shall not be
applicable to any particular business combination, and such business
combination shall require only such affirmative vote as may be required by
law, by any voting rights granted to or held by holders of Preferred Stock
and by any other provision of this Certificate of Incorporation, if the
proposed business combination is solely between the Corporation and another
corporation, 30% or more of the voting stock of which is owned by the
Corporation.
(c) DEFINITIONS. For purposes of this Article XIII:
(1) The term "business combination" shall mean: (i) any merger
or consolidation of the Corporation or of any subsidiary of the Corporation
with or into any other entity; (ii) the sale, exchange or lease of all or any
substantial part of the assets of the Corporation to any other entity; or (iii)
any sale or lease to the Corporation or any subsidiary thereof in exchange for
securities of the Corporation of any assets of any other entity or securities
issued by such other entity, for which the approval of stockholders of the
Corporation is required by law or by any agreement between the Corporation and
any national securities exchange.
(2) The term "other entity" shall mean and include (i) any
individual, corporation, partnership or other person; (ii) any other party
which is an "affiliate" or "associate" (as those terms are defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of
1934) of any entity described in clause (i); (iii) any other party with which
any entity described in clause (i) or any of its affiliates or associates have
any agreement, arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of shares of the
Corporation; and (iv) the predecessors, successors or assigns of any entities
described in clauses (i), (ii) or (iii) in any transaction or series of
transactions not involving a public offering of the shares of the Corporation
within the meaning of the Securities Act of 1933; provided, however, that the
term "other entity" shall not include any individual, corporation, partnership
or other person, entity or group which "beneficially owned" on March 1, 1998,
five percent (5%) or more of the outstanding common stock of Willis Lease
Finance Corporation, a California corporation.
(3) The term "continuing director" shall mean a director who
(i) is unaffiliated with and is not the other entity and (ii) was a member of
the Board of Directors prior to the time that the other entity involved in the
proposed business combination acquired in excess of 5% of the outstanding
shares of Common Stock of the Corporation.
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(4) The term "beneficial ownership" shall include, without
limitation, any shares of stock of the Corporation which any other entity has
the right to acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
(5) For the purposes of subparagraph (b)(ii) of this
Article XIII, the term "other consideration" shall include Common Stock of the
Corporation retained by its existing public stockholders in the event of a
business combination with such other entity in which the Corporation is the
surviving corporation.
(d) DETERMINATION OF COMPLIANCE. A majority of the continuing directors
shall have the power and duty to determine, for purposes of this Article XIII
and on the basis of information known to them:
(1) Whether the proposal business combination is within the
scope of this Article XIII;
(2) Whether the other entity owns beneficially more than 5% of
the outstanding shares of Common Stock of the Corporation;
(3) The per share value proposed to be paid to the holders of
Common Stock of the Corporation in the business combination, within the meaning
of paragraph (b)(ii) of this Article XIII; and
(4) The highest price per share paid by the other entity,
within the meaning of subparagraph (b)(ii) of this Article XIII.
Such determination(s), if made in good faith, shall be binding upon all
parties.
(e) FIDUCIARY DUTY. Nothing contained in this Article XIII shall be
construed to relieve the other entity from any fiduciary obligation imposed by
statute or case law.
ARTICLE XIV
CREDITOR COMPROMISE OR ARRANGEMENT
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
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corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in accordance with the General Corporation Law of the
State of Delaware, has executed this Certificate as of March 12, 1998.
/s/ Jeanne Carnahan
-------------------------------
Jeanne Carnahan, Incorporator
8
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WILLIS LEASE FINANCE CORPORATION
Willis Lease Finance Corporation (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify that:
FIRST: The Board of Directors of the Corporation has approved the
following amendment to Article IV of the Certificate of Incorporation of the
Corporation so that, as amended, said Article shall read as follows:
ARTICLE IV
AUTHORIZED CAPITAL STOCK
(a) The corporation shall be authorized to issue two classes of shares of
stock to be designated, respectively, "Preferred Stock" and "Common Stock"; the
total number of shares which the corporation shall have authority to issue is
Twenty-Five Million (25,000,000); the total number of shares of Preferred Stock
shall be Five Million (5,000,000) and each such share shall have a par value of
one cent ($0.01); and the total number of shares of Common Stock shall be
Twenty Million (20,000,000) and each such share shall have a par value of one
cent ($0.01).
(b) The shares of Preferred Stock may be issued from time to time in one
or more series. The board of directors is hereby vested with authority to fix
by resolution or resolutions the designations and the powers, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, including without limitation the dividend
rate, conversion or exchange rights, redemption price and liquidation
preference, of any series of shares of Preferred Stock, and to fix the number
of shares constituting any such series, and to increase or decrease the number
of shares of any such series (but not below the number of shares thereof then
outstanding). In case the number of shares of any such series shall be so
decreased, the shares constituting such decrease shall resume the status which
they had prior to the adoption of the resolution or resolutions originally
fixing the number of shares of such series.
SECOND: The stockholders of the Corporation considered and voted
unanimously in favor of the amendment.
<PAGE>
THIRD: Said amendment was duly adopted in accordance with the
provisions of Section 242 and 228 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment on this 28th day of April, 1998.
WILLIS LEASE FINANCE CORPORATION,
a Delaware Corporation
By: /s/ Rae A. Capps
----------------------------
Name: Rae A. Capps
Title: Senior Vice President
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______________________________________________
BYLAWS
OF
WILLIS LEASE FINANCE CORPORATION
(A DELAWARE CORPORATION)
______________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE I. Offices
SECTION 1.01. Registered Office..........................................1
SECTION 1.02. Other Offices..............................................1
ARTICLE II. Meetings of Stockholders
SECTION 2.01. Annual Meetings............................................1
SECTION 2.02. Special Meetings...........................................1
SECTION 2.03. Place of Meetings..........................................1
SECTION 2.04. Notice of Meetings.........................................1
SECTION 2.05. Quorum.....................................................2
SECTION 2.07. Voting.....................................................2
SECTION 2.08. Fixing Date for Determination of Stockholders of Record....3
SECTION 2.09. List of Stockholders Entitled to Vote......................3
SECTION 2.10. Judges.....................................................3
SECTION 2.11. Notice of Stockholder Business and Nominations.............4
ARTICLE III. Board of Directors
SECTION 3.01. General Powers.............................................6
SECTION 3.02. Number and Term of Office..................................6
SECTION 3.03. Election of Directors......................................6
SECTION 3.04. Resignations...............................................6
SECTION 3.05. Removal....................................................6
SECTION 3.06. Vacancies..................................................6
SECTION 3.07. Place of Meeting, Etc......................................6
SECTION 3.08. Regular Meetings...........................................6
SECTION 3.09. Special Meetings...........................................7
SECTION 3.10. Quorum and Manner of Acting................................7
SECTION 3.11. Organization...............................................7
SECTION 3.12. Action by Consent..........................................7
SECTION 3.13. Compensation...............................................7
SECTION 3.14. Committees.................................................8
ARTICLE IV. Officers
SECTION 4.01. Number.....................................................8
SECTION 4.02. Election, Term of Office and Qualifications................8
SECTION 4.03. Assistants, Agents and Employees, Etc......................8
SECTION 4.04. Removal....................................................8
SECTION 4.05. Resignations...............................................9
SECTION 4.06. Vacancies..................................................9
SECTION 4.07. Inability to Act...........................................9
SECTION 4.08. The Chairman of the Board..................................9
SECTION 4.09. The President..............................................9
SECTION 4.10. The Chief Financial Officer................................9
SECTION 4.11. The Vice Presidents........................................9
SECTION 4.12. The Corporate Secretary....................................9
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SECTION 4.13. Compensation...............................................9
ARTICLE V. Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.01. Execution of Contracts....................................10
SECTION 5.02. Checks, Drafts, Etc.......................................10
SECTION 5.03. Deposits..................................................10
SECTION 5.04. General and Special Bank Accounts.........................10
ARTICLE VI. Shares and Their Transfer
SECTION 6.01. Certificates for Stock....................................10
SECTION 6.02. Transfers of Stock........................................11
SECTION 6.03. Regulations...............................................11
SECTION 6.04. Lost, Stolen, Destroyed, and Mutilated Certificates.......11
ARTICLE VII. Indemnification
SECTION 7.01. Indemnification...........................................11
SECTION 7.02. Expenses..................................................12
SECTION 7.03. Other Rights and Remedies.................................12
SECTION 7.04. Insurance.................................................12
SECTION 7.05. Constituent Corporations..................................12
ARTICLE VIII. Miscellaneous
SECTION 8.01. Fiscal Year...............................................13
SECTION 8.02. Waiver of Notices.........................................13
SECTION 8.03. Seal......................................................13
SECTION 8.04. Interested Directors; Quorum..............................13
SECTION 8.05. Amendments................................................13
SECTION 8.06. Representation of Shares in Other Corporations............13
SECTION 8.07. Severability..............................................13
SECTION 8.08. Pronouns..................................................13
</TABLE>
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BYLAWS
OF
WILLIS LEASE FINANCE CORPORATION
(a Delaware corporation)
ARTICLE I.
Offices
SECTION 1.01 REGISTERED OFFICE. The registered office of Willis
Lease Finance Corporation (hereinafter called the Corporation) in the State of
Delaware shall be at 9 East Loockerman Street, City of Dover, County of Kent,
and the name of the registered agent in charge thereof shall be National
Registered Agents, Inc.
SECTION 1.02 OTHER OFFICES. The Corporation may also have an
office or offices at such other place or places, either within or without the
State of Delaware, as the Board of Directors (hereinafter called the Board) may
from time to time determine or as the business of the Corporation may require.
ARTICLE II.
Meetings of Stockholders
SECTION 2.01 ANNUAL MEETINGS. Annual meetings of the stockholders
of the Corporation for the purpose of electing directors to succeed those whose
terms expire and for the transaction of such other proper business as may
properly come before such meetings may be held at such time, date and place as
the Board shall determine by resolution.
SECTION 2.02 SPECIAL MEETINGS. Special meetings of the
stockholders for the transaction of any proper business, unless otherwise
prescribed by statute, may be called only in accordance with Article XI of the
Corporation's Certificate of Incorporation as it may be amended from time to
time (the "Certificate of Incorporation").
SECTION 2.03 PLACE OF MEETINGS. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of notice thereof.
In the absence of any such designation, stockholders' meetings shall be held at
the principal executive office of the Corporation.
SECTION 2.04 NOTICE OF MEETINGS. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of record entitled to vote at such
meeting by delivering a typewritten or printed notice thereof to him
personally, or by depositing such notice in the United States mail, in a
postage prepaid envelope, directed to him at his post office address furnished
by him to the Corporate Secretary of the Corporation for such purpose or, if he
shall not have furnished to the Corporate Secretary his address for such
purpose, then at his post office address last known to the Corporate
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Secretary, or by transmitting a notice thereof to him at such address by
telegraph, cable, or wireless. Except as otherwise expressly required by
law, no publication of any notice of a meeting of the stockholders shall be
required. Every notice of a meeting of the stockholders shall state the
place, date and hour of the meeting, and, in the case of a special meeting,
shall also state the purpose or purposes for which the meeting is called.
Notice of any meeting of stockholders shall not be required to be given to
any stockholder who shall have waived such notice and such notice shall be
deemed waived by any stockholder who shall attend such meeting in person or
by proxy, except a stockholder who shall attend such meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Except
as otherwise expressly required by law, notice of any adjourned meeting of
the stockholders need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken.
SECTION 2.05 QUORUM. Except where otherwise provided by law, the
holders of record of a majority of the shares of stock of the Corporation
entitled to be voted thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business at any meeting of the stockholders of
the Corporation or any adjournment thereof. For purposes of the foregoing, two
or more classes or series of stock shall be considered a single class if the
holders thereof are entitled to vote together as a single class at the meeting.
In the absence of a quorum at any meeting or any adjournment thereof, a
majority of the shares of stock of the Corporation present in person or by
proxy and entitled to vote thereat or, in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as secretary of,
such meeting may adjourn such meeting from time to time. At any such adjourned
meeting at which a quorum is present any business may be transacted which might
have been transacted at the meeting as originally called.
SECTION 2.06 VOTING.
(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy for each share or fractional share of
the stock of the Corporation held by him which has voting power upon the matter
in question.
(b) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized
and delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after eleven months from its date unless said
proxy shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders,
all matters, except as otherwise provided in the Certificate of Incorporation
or in these Bylaws, shall be decided by the vote of a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat and thereon, a quorum being present. The vote at any meeting of the
stockholders on any question need not be by ballot, unless the holders of a
majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy shall so determine. On a vote by ballot,
each ballot shall be signed by the stockholder voting, or by his proxy, if
there be such proxy, and it shall state the number of shares voted.
(c) Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the Corporation in a
fiduciary capacity shall be entitled to vote such stock. Persons whose stock
is pledged shall be entitled to vote, unless in the transfer by the pledgor on
the books of the Corporation he shall have expressly
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empowered the pledgee to vote thereon, in which case only the pledgee, or his
proxy, may represent such stock and vote thereon. Stock having voting power
standing of record in the names of two or more persons, whether fiduciaries,
members of a partnership, joint tenants in common, tenants by entirety or
otherwise, or with respect to which two or more persons have the same
fiduciary relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
SECTION 2.07 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any other change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If no record date is fixed:
(1) the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
before the day on which notice is given, or, if notice is waived, at the close
of business on the day before the day on which the meeting is held; and (2) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto. A determination of stockholders entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of such meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting. When a record date is so fixed, only shareholders of record at the
close of business on that date are entitled to notice of and to vote at the
meeting or to receive the dividend, distribution, or allotment of rights, or to
exercise the rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after the record date. The Board may
close the books of the Corporation against transfers of shares during the whole
or any part of a period of not more than sixty (60) days prior to the date of a
shareholders' meeting, the date when the right to any dividend, distribution,
or allotment of rights vests, or the effective date of any change, conversion
or exchange of shares.
SECTION 2.08 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Corporate
Secretary of the Corporation shall prepare and make, or cause to be prepared
and made, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also
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.
SECTION 2.09 JUDGES. If at any meeting of the stockholders a vote
by written ballot shall be taken on any question, the chairman of such meeting
may appoint a judge or judges to act with respect to such vote. Each judge so
appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of his
ability. Such judges shall decide upon the qualification of the voters and
shall report the number of shares represented at the meeting and entitled to
vote on such question, shall conduct and accept the votes, and, when the voting
is completed, shall ascertain and report the number of shares voted
respectively for and against the question. Reports of judges shall be in
writing and subscribed and delivered by them to the Corporate Secretary of the
Corporation. The judges need not be stockholders of the Corporation, and any
officer of the Corporation may
3
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be a judge on any question other than a vote for or against a proposal in
which he shall have a material interest.
SECTION 2.10 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of the stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board or (c) by any stockholder of
the Corporation who was a stockholder of record at the time of giving of notice
provided for in this Bylaw, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1)
of this Bylaw, the stockholder must have given timely notice thereof in
writing, in conformance with the requirements of this Bylaw, to the Corporate
Secretary of the Corporation and such other business must otherwise be a proper
matter for stockholder action. To be timely, a stockholder's notice shall be
delivered to the Corporate Secretary at the principal executive offices of the
Corporation not later than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the 90th day prior to such annual meeting or the 10th day following
the day on which public announcement of the date of such meeting is first made
by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment
of such person, (iii) the class and number of shares of the Corporation which
are beneficially owned by such person, (iv) a description of all arrangements
or understandings between the stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nominations
are to be made by the stockholder, and (v) any other 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 (the "1934 Act")
(including without limitation such person's written consent to being named in
the proxy statement, if any, as a nominee and to serving as a director if
elected); and (b) as to any other business that the stockholder proposes to
bring before the meeting (i) a brief description of the business desired to be
brought before the meeting, (ii) the reasons for conducting such business at
the meeting, (iii) any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made and
(iv) any other information which is required to be disclosed in solicitations
of proxies on behalf of any such business, and specifically, any such
information called for by Items 4 and 5 of Regulation 14A under the 1934 Act
regarding such other business, the proponent of such other business and any
associates or persons who would be deemed "participants" under Regulation 14A
were the proponent soliciting proxies on behalf of such other business. All
such notices shall include (i) a representation that the person sending the
notice is a shareholder of record and will remain such through the record date
for the meeting, (ii) the name and address, as they appear on the Corporation's
books, of such shareholder, (iii) the class and number of the Corporation's
shares which are owned beneficially and of record by such shareholder, and
(iv) a representation that such shareholder intends to appear in person or by
proxy at such meeting to make the nomination or move the consideration of other
business set forth in the notice.
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(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Bylaw to the contrary, in the event that the number of
directors to the Board is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Bylaw
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 Corporate
Secretary at the principal executive offices of the Corporation not later than
the close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. 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 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 or
(b) provided that the Board 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 Bylaw, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board,
any such stockholder 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 paragraph (A)(2) of this Bylaw
shall be delivered to the Corporate Secretary at the principal executive
offices of the Corporation not later than the close of business on the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting. In no event
shall the public announcement of an adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(C) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as directors and
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 Bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the chairman of the meeting shall, if the facts
warrant, determine and declare at the meeting that business or a nomination is
not properly before the meeting and, if he should so determine, the defective
business shall not be transacted and the defective nomination shall be
disregarded.
(2) For purposes of this Bylaw, "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.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all the applicable requirements of the 1934
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the 1934 Act of
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
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ARTICLE III.
Board of Directors
SECTION 3.01 GENERAL POWERS. The property, business and affairs of
the Corporation shall be managed by the Board.
SECTION 3.02 NUMBER AND TERM OF OFFICE. The authorized number of
directors shall be five (5), and such number shall not be changed except by a
Bylaw amending this section duly adopted by the Board or duly adopted by the
stockholders pursuant to the terms of Article IX of the Certificate of
Incorporation. Directors need not be stockholders. Each of the directors of
the Corporation shall hold office until his successor shall have been duly
elected and shall qualify or until he shall resign, die, become disqualified or
disabled or shall otherwise be removed in the manner hereinafter provided.
SECTION 3.03 ELECTION OF DIRECTORS. The directors shall be elected
annually by the stockholders of the Corporation and the persons receiving the
greatest number of votes, up to the number of directors to be elected, shall be
the directors. The election of directors is subject to any provisions
contained in the Certificate of Incorporation relating thereto, including any
provisions for a classified Board.
SECTION 3.04 RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice to the Board, the Chairman of the
Board, the President or the Corporate Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or, if the time is
not specified, it shall take effect immediately upon its receipt; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.05 REMOVAL. Any director or the entire Board may be
removed, with cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
SECTION 3.06 VACANCIES. Except as otherwise provided in the
Certificate of Incorporation and except for a vacancy created by the removal of
a director, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or otherwise, may be
filled by vote of the majority of the remaining directors, although less than a
quorum. Vacancies created by the removal of a director may be filled only by
the affirmative vote of the holders of a majority of the outstanding stock then
entitled to vote at an election of directors. Each director so chosen to fill
a vacancy shall hold office until his successor shall have been elected and
shall qualify or until he shall resign, die, become disqualified or disabled or
shall otherwise be removed in the manner herein provided.
SECTION 3.07 PLACE OF MEETING, ETC. The Board may hold any of its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution designate or as shall be designated
by the person or persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors may participate in any regular or
special meeting of the Board by means of conference telephone or similar
communications equipment pursuant to which all persons participating in the
meeting of the Board can hear each other, and such participation shall
constitute presence in person at such meeting.
SECTION 3.08 REGULAR MEETINGS. A regular annual meeting of the
Board shall be held without any further notice immediately after, and at the
same place as, the annual
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meeting of shareholders. The Board may provide for other regular meetings
from time to time by resolution. If any day fixed for a regular meeting
shall be a legal holiday at the place where the meeting is to be held, then
the meeting shall be held at the same hour and place on the next succeeding
business day that is not a legal holiday. Except as provided by law, notice
of regular meetings need not be given.
SECTION 3.09 SPECIAL MEETINGS. Special meetings of the Board shall
be held whenever called by the Chairman of the Board, the President, any Vice
President, the Corporate Secretary or any two (2) directors. Except as
otherwise provided by law or by these Bylaws, notice of the time and place of
each such special meeting shall be mailed to each director, addressed to him at
his residence or usual place of business, at least five (5) days before the day
on which the meeting is to be held, or shall be sent to him at such place by
telegraph or cable or be delivered personally not less than forty-eight (48)
hours before the time at which the meeting is to be held. Except where
otherwise required by law or by these Bylaws, notice of the purpose of a
special meeting need not be given. Notice of any meeting of the Board shall
not be required to be given to any director who signs a waiver of notice,
whether before or after the meeting, or who attends the meeting, without
protesting prior thereto or at its commencement, the lack of notice to such
director.
SECTION 3.10 QUORUM AND MANNER OF ACTING. Except as otherwise
provided in these Bylaws, the presence of a majority of the authorized number
of directors shall be required to constitute a quorum for the transaction of
business at any meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of a majority of
the directors present. In the absence of a quorum, a majority of directors
present at any meeting may adjourn the same from time to time until a quorum
shall be present. If a meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the reconvened meeting to the directors who were not present at
the time of adjournment. The directors shall act only as a Board, and the
individual directors shall have no power as such. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
SECTION 3.11 ORGANIZATION. Meetings of the Board shall be presided
over by the Chairman of the Board, or in his absence by the President, or in
his absence by the Chief Administrative Officer, or in his absence by the Chief
Financial Officer, or in his absence by a Vice President, or in their absence
by a chairman chosen at the meeting. The Corporate Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
SECTION 3.12 ACTION BY CONSENT. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board or committee. Such
action by written consent shall have the same force and effect as a unanimous
vote of such directors.
SECTION 3.13 COMPENSATION. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse
each such director for any expense incurred by him on account of his attendance
at any meetings of the Board or Committees of the Board. Neither the payment
of such compensation nor the reimbursement of such expenses shall be construed
to preclude any director from serving the Corporation or its subsidiaries in
any other capacity and receiving compensation therefor.
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SECTION 3.14 COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to consist of one (1) or more of the directors of the Corporation and to serve
at the pleasure of the Board. Any such committee, to the extent provided in
the resolution of the Board and except as otherwise limited by law, shall have
and may exercise all the powers and authority of the Board in the management of
the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of dissolution,
removing or indemnifying directors or amending these Bylaws; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of the stock. Any
such committee shall keep written minutes of its meetings and report the same
to the Board at the next regular meeting of the Board. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
ARTICLE IV.
Officers
SECTION 4.01 NUMBER. The officers of the Corporation shall be a
Chairman of the Board, a President, a Chief Financial Officer, one or more Vice
Presidents (the number thereof and their respective titles to be determined by
the Board), and a Corporate Secretary. In addition, the Board may appoint such
other officers as may be deemed expedient for the proper conduct of the
business of the Corporation, each of whom shall have such authority and perform
such duties as the Board may from time to time determine.
SECTION 4.02 ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The
officers of the Corporation, except such officers as may be appointed in
accordance with Section 4.03, shall be chosen annually at the regular meeting
of the Board held after the annual meeting of shareholders and shall serve at
the pleasure of the Board. If officers are not chosen at such meeting of the
Board, they shall be chosen as soon thereafter as shall be convenient. Each
officer shall hold office until his successor shall have been duly chosen and
shall qualify or until his resignation, death, disqualification or removal in
the manner hereinafter provided.
SECTION 4.03 ASSISTANTS, AGENTS AND EMPLOYEES, ETC. In addition to
the officers specified in Section 4.01, the Board may appoint other assistants,
agents and employees as it may deem necessary or advisable, including one or
more Assistant Secretaries, and one or more Assistant Financial Officers, each
of whom shall hold office for such period, have such authority, and perform
such duties as the Board may from time to time determine. The Board may
delegate to any officer of the Corporation or any committee of the Board the
power to appoint, remove and prescribe the duties of any such assistants,
agents or employees.
SECTION 4.04 REMOVAL. Any officer, assistant, agent or employee of
the Corporation may be removed, with or without cause, at any time: (i) in the
case of an officer, assistant, agent or employee appointed by the Board, only
by resolution of the Board; and (ii) in the case of an officer, assistant,
agent or employee, by any officer of the Corporation or committee of the Board
upon whom or which such power of removal may be conferred by the Board.
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SECTION 4.05 RESIGNATIONS. Any officer or assistant may resign at
any time by giving written notice of his resignation to the Board, the Chairman
of the Board, the President or the Corporate Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein, or, if the
time be not specified, upon receipt thereof by the Board, the Chairman of the
Board, the President or the Corporate Secretary, as the case may be; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 4.06 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or other cause, may be filled by the
Board for the unexpired portion of the term thereof.
SECTION 4.07 INABILITY TO ACT. In the case of absence or inability
to act of any officer of the Corporation, the Board may from time to time
delegate the powers or duties of such officer to any other officer, or any
director or other person whom it may select.
SECTION 4.08 THE CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board.
SECTION 4.09 THE PRESIDENT. The President of the Corporation shall
be the chief executive officer of the Corporation and, subject to the control
of the Board, shall preside at all meetings of shareholders, shall have general
and active supervision and management over the business of the Corporation and
over its several officers, assistants, agents and employees, shall make reports
to the Board and shareholders, and shall perform all such other duties as are
incident to such office or are properly required by the Board.
SECTION 4.10 THE CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall have the general care and custody of the funds and securities of
the Corporation, and shall deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositories as shall be
selected by the Board, and shall keep regular books of account. He shall
receive, and give receipts for, moneys due and payable to the Corporation from
any source whatsoever. He shall exercise general supervision over expenditures
and disbursements made by officers, agents and employees of the Corporation and
the preparation of such records and reports in connection therewith as may be
necessary or desirable. He shall, in general, perform all other duties
incident to the office of Chief Financial Officer and such other duties as from
time to time may be properly assigned to him by the Board or the President.
SECTION 4.11 THE VICE PRESIDENTS. Each Vice President shall have
such powers and perform such duties as the Board or the President may from time
to time properly prescribe. At the request of the President, or in case of the
President's absence or inability to act upon the request of the Board, a Vice
President shall perform the duties of the President and when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
President.
SECTION 4.12 THE CORPORATE SECRETARY. The Corporate Secretary
shall, if present, record the proceedings of all meetings of the Board, of the
stockholders, and of all committees of which a secretary shall not have been
appointed, in one or more books provided for that purpose; he shall see that
all notices are duly given in accordance with these Bylaws and as required by
law; and, in general, he shall perform all the duties incident to the office of
Corporate Secretary and such other duties as may from time to time be properly
assigned to him by the Board or the President.
SECTION 4.13 COMPENSATION. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. None of such
officers shall be
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prevented from receiving such compensation by reason of the fact that he is
also a director of the Corporation. Nothing contained herein shall preclude
any officer from serving the Corporation, or any subsidiary corporation, in
any other capacity and receiving proper compensation therefor.
ARTICLE V.
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.01 EXECUTION OF CONTRACTS. The Board, except as in these
Bylaws otherwise provided, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances; and unless so authorized by the Board or by these Bylaws,
no officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
SECTION 5.02 CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board.
SECTION 5.03 DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board may select,
or as may be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to whom such power
shall have been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the Chairman of the
Board, the President, the Chief Financial Officer or any Vice President (or any
other officer or officers, assistant or assistants, agent or agents, or
attorney or attorneys of the Corporation who shall from time to time be
determined by the Board) may endorse, assign and deliver checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation.
SECTION 5.04 GENERAL AND SPECIAL BANK ACCOUNTS. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board
may select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI.
Shares and Their Transfer
SECTION 6.01 CERTIFICATES FOR STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate or certificates, to be in
such form as the Board shall prescribe, certifying the number and class of
shares of the stock of the Corporation owned by him. The certificates
representing shares of such stock shall be numbered in the order in which they
shall be issued and shall be signed in the name of the Corporation by the
Chairman of the Board or the President or a Vice President, and by the Chief
Financial Officer or the Corporate Secretary or an Assistant Secretary. Any of
or all of the signatures on the certificates
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may be a facsimile. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been placed upon, any such
certificate, shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may
nevertheless be issued by the Corporation with the same effect as though the
person who signed such certificate, or whose facsimile signature shall have
been placed thereupon, were such officer, transfer agent or registrar at the
date of issue. A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such
certificates, respectively, and the respective dates thereof, and in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be canceled,
and no new certificate or certificates shall be issued in exchange for any
existing certificate until such existing certificate shall have been so
canceled, except in cases provided for in Section 6.04.
SECTION 6.02 TRANSFERS OF STOCK. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Corporate Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.03, and
upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose name shares
of stock stand on the books of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation. Whenever any transfer of
shares shall be made for collateral security, and not absolutely, such fact
shall be so expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so.
SECTION 6.03 REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
SECTION 6.04 LOST, STOLEN, DESTROYED, AND MUTILATED CERTIFICATES.
In any case of loss, theft, destruction, or mutilation of any certificate of
stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bond when,
in the judgment of the Board, it is proper so to do.
ARTICLE VII.
Indemnification
SECTION 7.01 INDEMNIFICATION. Subject to any limitation which may
be contained in the Certificate of Incorporation, the Corporation shall to the
full extent permitted by law, including, without limitation, Delaware General
Corporation Law Section 145, as such Section now exists or shall hereafter be
amended, indemnify any person who was, is or is threatened to be made a party,
a named defendant or respondent to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, arbitral, administrative,
or investigative, any appeal in such action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit, or
proceeding, because such person is or was a director, officer employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another
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corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, against judgments, penalties (including
excise and similar taxes), fines, settlements, and reasonable expenses
(including attorneys' fees) actually incurred by such person in connection
with such action, suit, or proceeding. The termination of any action, suit
or proceeding by judgment, order, settlement, or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that an individual did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 7.02 EXPENSES. Subject to any limitation which may be
contained in the Certificate of Incorporation, the Corporation shall, to the
full extent permitted by law, including, without limitation, Section 145 of the
Delaware General Corporation Law, as such Section now exists or shall hereafter
be amended, pay or reimburse on a current basis the expenses incurred by any
person described in Section 7.01 in connection with any such action, suit, or
proceeding in advance of the final disposition thereof, if the Corporation has
received (i) a written affirmation by the recipient of his good faith belief
that he has met the standard of conduct necessary for indemnification under the
Delaware General Corporation Law and (ii) a written undertaking by or on behalf
of such director or officer to repay the amount paid or reimbursed if it is
ultimately determined that he has not satisfied such standard of conduct or if
indemnification is prohibited by law.
SECTION 7.03 OTHER RIGHTS AND REMEDIES. The indemnification
provided by this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. The
rights provided in this Article VII shall be deemed to be provided by a
contract between the Corporation and the individuals who serve in the
capacities described in Section 7.01 at any time while these bylaws are in
effect, and no repeal or modification of this Article VII by the stockholders
shall adversely affect any right of any person otherwise entitled to
indemnification by virtue of this Article VII at the time of such repeal or
modification.
SECTION 7.04 INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article.
SECTION 7.05 CONSTITUENT CORPORATIONS. For the purposes of this
Article, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation, so that any person who is or was a director, officer, employee or
agent of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as such person would if such
person had served the resulting or surviving corporation in the same capacity.
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ARTICLE VIII.
Miscellaneous
SECTION 8.01 FISCAL YEAR. The fiscal year of the Corporation shall
end on the 31st day of December.
SECTION 8.02 WAIVER OF NOTICES. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice.
SECTION 8.03 SEAL. The Corporation may have a corporate seal which
shall have the name of the Corporation and shall be in such form as may be
approved from time to time by the Board. The corporate seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION 8.04 INTERESTED DIRECTORS; QUORUM. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or
officers are directors or officers, or have financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if: (1) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (2) the material facts as to his
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (3) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board, a committee thereof or
the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board or of a committee which
authorizes the contract or transaction.
SECTION 8.05 AMENDMENTS. These Bylaws may be amended only in
accordance with Article IX of the Corporation's Certificate of Incorporation.
SECTION 8.06 REPRESENTATION OF SHARES IN OTHER CORPORATIONS.
Shares of other corporations standing in the name of this Corporation may be
voted or represented and all incidents thereto may be exercised on behalf of
the Corporation by the Chairman of the Board, the President or any Vice
President and the Chief Financial Officer or the Corporate Secretary or an
Assistant Secretary.
SECTION 8.07 SEVERABILITY. Any determination that any provision of
these Bylaws is for any reason inapplicable, illegal or ineffective shall not
affect or invalidate any other provision of these Bylaws.
SECTION 8.08 PRONOUNS. All pronouns used in these Bylaws shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or persons may require.
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CERTIFICATE OF CORPORATE SECRETARY
The undersigned, being the duly elected Corporate Secretary of Willis Lease
Finance Corporation, a Delaware corporation, hereby certifies that the Bylaws
to which this Certificate is attached were duly adopted by the Board of
Directors of said Corporation on March 12, l998.
/s/ Lynn Mailliard
---------------------------------
Lynn Mailliard
Corporate Secretary
