Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
PEMCO AVIATION GROUP, INC.
I, the undersigned, for the purpose of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, do
execute this Certificate of Incorporation and do hereby certify as
follows:
FIRST: The name of the Corporation (hereinafter the "Corporation") is
Pemco Aviation Group, Inc.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is 1013
Centre Road, City of Wilmington, County of New Castle; and the name of the
Registered Agent of the Corporation at such address is Corporation Service
Company.
THIRD: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of
Delaware (the "GCL").
FOURTH: The Corporation is authorized to issue two classes of stock
to be designated, respectively, Common Stock, par value $0.0001 per share
("Common Stock") and Preferred Stock, par value $0.0001 per share
("Preferred Stock"). The total number of shares the Corporation shall
have the authority to issue is 17,000,000 shares, 12,000,000 shares of
which shall be Common Stock and 5,000,000 shares of which shall be
Preferred Stock.
(1) Common Stock. The voting, dividend and liquidation
rights of the holders of the Common Stock are subject to and qualified by
the rights of the holders of the Preferred Stock of any series as may be
designated by the Board of Directors upon any issuance of the Preferred
Stock or any series. The holders of the Common Stock are entitled to one
vote for each share held at all meetings of stockholders. There shall be
no cumulative voting. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by the
Board of Directors and subject to any preferential dividend rights of any
then outstanding Preferred Stock. Upon the dissolution or liquidation of
the Corporation, whether voluntary or involuntary, holders of the
Corporation will be entitled to receive ratably all assets of the
Corporation available for distribution to stockholders, subject to any
preferential rights of any then outstanding Preferred Stock.
(2) Preferred Stock. Shares of Preferred Stock may be
issued from time to time in one or more series, each of such series to
have such terms as stated in the resolution or resolutions providing for
the establishment of such series adopted by the Board of Directors of the
Corporation as hereinafter provided. Authority is hereby expressly granted
to the Board of Directors of the Corporation to issue, from time to time,
shares of Preferred Stock in one or more series, and, in connection with
the establishment of any such series by resolution or resolutions, to
determine and fix such voting powers, full or limited, or no voting
powers, and such other powers, designations, preferences and relative,
participating, optional, and other special rights, and the qualifications,
limitations, and restrictions thereof, if any, including, without
limitation, dividend rights, conversion rights, redemption privileges and
liquidation preferences, as shall be stated in such resolution or
resolutions, all to the fullest extent permitted by the GCL. Without
limiting the generality of the foregoing, the resolution or resolutions
providing for the establishment of any series of Preferred Stock may, to
the extent permitted by law, provide that such series shall be superior
to, rank equally with or be junior to the Preferred Stock of any other
series. The powers, preferences and relative, participating, optional and
other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may be
different from those of any and all other series at any time outstanding.
Except as otherwise expressly provided in the resolution or resolutions
providing for the establishment of any series of Preferred Stock, no vote
of the holders of shares of Preferred Stock or Common Stock shall be a
prerequisite to the issuance of any shares of any series of the Preferred
Stock authorized by and complying with the conditions of this Certificate
of Incorporation.
FIFTH: The incorporator of the Corporation is Chris Allingham, whose
mailing address is c/o Latham & Watkins, 701 B St., Suite 2100, San Diego,
California 92101.
SIXTH: (1) The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors having that
number of directors set out in the Bylaws of the Corporation as adopted or
as set forth from time to time by a duly adopted amendment thereto by the
Board of Directors or stockholders of the Corporation.
(2) No director (other than directors elected by one or more
series of Preferred Stock) may be removed from office by the stockholders
except for cause and, in addition to any other vote required by law, upon
the affirmative vote of not less than 66 2/3% of the total voting power of
all outstanding securities of the Corporation then entitled to vote
generally in the election of directors, voting together as a single class.
(3)The directors of the Corporation, other than directors
elected by one or more series of Preferred Stock, shall be divided into
three classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total
number of directors (other than directors elected by one or more series of
Preferred Stock) constituting the entire Board of Directors. Each director
(other than directors elected by one or more series of Preferred Stock)
shall serve for a term ending on the date of the third annual meeting of
stockholders next following the annual meeting at which such director was
elected, provided that directors initially designated as Class I directors
shall serve for a term ending on the date of the 2001 annual meeting,
directors initially designated as Class II directors shall serve for a
term ending on the date of the 2002 annual meeting, and directors
initially designated as Class III directors shall serve for a term ending
on the date of the 2003 annual meeting. Notwithstanding the foregoing,
each director shall hold office until such director's successor shall have
been duly elected and qualified or until such director's earlier death,
resignation or removal. If the number of directors (other than directors
elected by one or more series of Preferred Stock) is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, but in no
event will a decrease in the number of directors shorten the term of any
incumbent director. Vacancies on the Board of Directors resulting from
death, resignation, removal or otherwise and newly created directorships
resulting from any increase in the number of directors (other than
directors elected by one or more series of Preferred Stock) may be filled
solely by a majority of the directors then in office (although less than a
quorum) or by a sole remaining director, and each director so elected
shall hold office for a term that shall coincide with the remaining term
of the class to which such director shall have been elected. Whenever the
holders of one or more classes or series of Preferred Stock shall have the
right, voting separately as a class or series, to elect directors, the
nomination, election, term of office, filling of vacancies, removal and
other features of such directorships shall not be governed by this Article
SIXTH unless otherwise provided for in the certificate of designation for
such classes or series.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation and for the
further definition of the powers of the Corporation and its directors and
stockholders:
(1) The Board of Directors is expressly authorized to make,
adopt, amend, alter, rescind or repeal the Bylaws of the Corporation.
Notwithstanding the foregoing, the stockholders may adopt, amend, alter,
rescind or repeal the Bylaws with, in addition to any other vote required
by law, the affirmative vote of the holders of not less than 66 2/3% of
the total voting power of all outstanding securities of the Corporation
then entitled to vote generally in the election of directors, voting
together as a single class.
(2) Elections of directors need not be by written ballot unless
the Bylaws of the Corporation so provide.
(3) Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken only upon the vote of
stockholders at an annual or special meeting duly noticed and called in
accordance with the GCL, and may not be taken by written consent of
stockholders without a meeting.
(4) Special meetings of stockholders may be called by the
Chairman of the Board of Directors or the President and shall be called by
the President or the Secretary at the written request of a majority of the
Board of Directors and may not be called by any other person.
Notwithstanding the foregoing, whenever holders of one or more series of
Preferred Stock shall have the right, voting separately as a series, to
elect directors, such holders may call special meetings of such holders
pursuant to the certificate of designation for such series.
NINTH: (a) Subject to Article NINTH (c), the Corporation shall
indemnify and hold harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person 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, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) Subject to Article NINTH (c), the Corporation shall
indemnify and hold harmless any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that he is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of
the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery of the State of Delaware or such other court shall deem
proper.
(c) Any indemnification under this Article NINTH (unless
ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the
director or officer or other person entitled to indemnification under this
Article NINTH is proper in the circumstances because he has met the
applicable standard of conduct set forth in Article NINTH (a) or Article
NINTH (b), as the case may be. Such determination shall be made, with
respect to an officer or director, (i) by the Board of Directors by a
majority vote of directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of
directors who were not parties to such action, suit or proceeding even
though less than a quorum, or (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written
opinion, or (iv) by the stockholders. To the extent, however, that a
present or former director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Article NINTH (a) or Article NINTH (b), or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of
authorization in the specific case.
(d) Notwithstanding any contrary determination in the
specific case under Article NINTH (c), and notwithstanding the absence of
any determination thereunder, any present or former director or officer of
the Corporation may apply to the Court of Chancery of the State of
Delaware for indemnification to the extent otherwise permissible under
Article NINTH (a) and Article NINTH (b). The basis of such
indemnification by a court shall be a determination by such court that
indemnification of such person is proper in the circumstances because he
has met the applicable standards of conduct set forth in Article NINTH (a)
or Article NINTH (b), as the case may be. Neither a contrary
determination in the specific case under Article NINTH (c) nor the absence
of any determination thereunder shall be a defense to such application or
create a presumption that such person seeking indemnification has not met
any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Article NINTH (d) shall be given to the
Corporation promptly upon the filing of such application. If successful,
in whole or in part, such person seeking indemnification in the Court of
Chancery of the State of Delaware shall also be entitled to be paid the
expense of prosecuting such application.
(e) Expenses incurred by a person who is or was a director
or officer of the Corporation in defending or investigating a threatened
or pending action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article NINTH.
(f) The indemnification and advancement of expenses
provided by or granted pursuant to this Article NINTH shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement,
contract, vote of stockholders or disinterested directors or pursuant to
the direction (howsoever embodied) of any court of competent jurisdiction
or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Article NINTH
(a) and Article NINTH (b) shall be made to the fullest extent permitted by
law. The provisions of this Article NINTH shall not be deemed to preclude
the indemnification of any person who is not specified in Article NINTH
(a) or Article NINTH (b) but whom the Corporation has the power or
obligation to indemnify under the provisions of the GCL, or otherwise.
(g) The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer 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, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article NINTH or
Section 145 of the GCL.
(h) For purposes of this Article NINTH, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors
or officers, so that any person who is or was a director or officer of
such 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, employee benefit
plan or other enterprise, shall stand in the same position under the
provisions of this Article NINTH with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article NINTH, references to "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such person with respect
to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to
be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Article NINTH.
For purposes of any determination under Article NINTH (c), a person shall
be deemed to have acted in good faith in a manner 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, to have had no reasonable
cause to believe his conduct was unlawful, if his action is based on the
records or books of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of
legal counsel for the Corporation or another enterprise or on information
or records given or reports made to the Corporation or another enterprise
by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" is used in this Article NINTH
(h) shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is
or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Article NINTH (h) shall not be
deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set
forth in Article NINTH (a) or (b), as the case may be.
(i) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article NINTH shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(j) Notwithstanding anything contained in this Article
NINTH to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Article NINTH (d)), the
Corporation shall not be obligated to indemnify any person in connection
with a proceeding (or part, thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
(k) The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article NINTH to directors
and officers of the Corporation.
TENTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this Article shall not
eliminate or limit the liability of a director (i) for any breach of his
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of the GCL, or (iv)
for any transaction from which the director derives an improper personal
benefit.
If the GCL is hereafter amended to authorize corporate
action further limiting or eliminating the personal liability of
directors, then the liability of the director to the Corporation shall be
limited or eliminated to the fullest extent permitted by the GCL, as so
amended from time to time. Any amendment, repeal or modification of this
Article shall be prospective only, and shall not adversely affect any
right or protection of a director of the Corporation under this Article
TENTH in respect of any act or omission occurring prior to the time of
such amendment, repeal or modification.
ELEVENTH: Each reference in this Certificate of Incorporation to any
provision of the GCL refers to the specified provision of the GCL, as the
same now exists or as it may hereafter be amended or superseded.
TWELFTH: The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter
prescribed by the laws of the State of Delaware; and all rights conferred
on stockholders, directors or any other persons herein are granted subject
to this reservation; provided, however, that no amendment, alteration,
change or repeal may be made to Article SIXTH or EIGHTH without the
affirmative vote of the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the outstanding voting stock of the corporation,
voting together as a single class.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is his act and deed on this 12th day of
April, 2000.
/s/ Chris Allingham
-------------------
Chris Allingham
Incorporator
