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EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MERCFUEL, INC.
WHEREAS, a Certificate of Incorporation for MercFuel, Inc. was filed on
October 27, 2000; and
WHEREAS, MercFuel desires to amend and restate the Certificate of
Incorporation pursuant to Sections 242 and 245 of the Delaware General
Corporation Laws; and
WHEREAS, MercFuel has complied with the procedural requirements set
forth in Section 242(b) of the Delaware General Corporation Laws.
NOW, THEREFORE, MercFuel, Inc., a corporation organized and existing
under the laws of the State of Delaware, hereby adopts the following Amended and
Restated Certificate of Incorporation:
ARTICLE I
NAME
The name of the corporation is MercFuel, Inc. (the "CORPORATION").
ARTICLE II
PURPOSE
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE III
SHARES
(a) The aggregate number of shares which the Corporation has
authority to issue is fifty million (50,000,000) shares of common stock, $.01
par value per share, and eight million (8,000,000) shares of preferred stock,
$.01 par value per share.
(b) The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of preferred stock in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications,
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limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the
issuance of such class or series and as may be permitted by the General
Corporation Law of Delaware. Such authorization shall include, without
limitation, the authority to provide that any such class or series may be: (a)
subject to redemption at such time or times and at such price or prices; (b)
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (c) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (d) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; all
as may be stated in such resolution or resolutions.
(c) At the time the Secretary of State of the State of Delaware
accepts this Amended and Restated Certificate of Incorporation for record, each
one (1) share of Common Stock of the Corporation issued and outstanding shall be
automatically converted into six thousand five hundred forty-six and four
hundred thirty hundredths (6,546.430) shares of Common Stock of the Corporation
without the necessity of any act or deed by the Corporation or by any holder
thereof.
(d) Each holder of an issued and outstanding certificate or
certificates representing shares of Common Stock of the Corporation shall
surrender the same to the Corporation, and each such holder shall thereupon be
entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of Common Stock into which the shares of stock
represented by the certificate or certificates so surrendered shall have been
converted by the provisions hereof.
ARTICLE IV
DENIAL OF PREEMPTIVE RIGHTS
Except as may be set forth in a written agreement executed by an
authorized representative of the Corporation, no stockholder of the Corporation
or other person shall have any preemptive rights to purchase or subscribe to any
shares of any class or any notes, debentures, options, warrants or other
securities, now or hereafter authorized.
ARTICLE V
REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation
is 1209 Orange Street, Wilmington, Delaware 19801 and the name of its initial
registered agent at such address is The Corporation Trust Company (New Castle
County).
ARTICLE VI
DIRECTORS
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(a) The business and affairs of the Corporation shall be managed by
or under the direction of a Board of Directors consisting of not less than three
nor more then twenty-four directors, the exact number of directors to be
determined from time to time solely by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors.
(b) The directors 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 constituting the entire
Board of Directors. Each director 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 first annual
meeting following the date of the distribution of this Corporation's common
stock to stockholders of Mercury Air Group, Inc. (the "Distribution Date"),
directors initially designated as Class II directors shall serve for a term
ending on the date of the second annual meeting following the Distribution Date,
and directors initially designated as Class III directors shall serve for a term
ending on the third annual meeting following the Distribution Date.
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. In the event of any change in
the number of directors, the Board of Directors shall apportion any newly
created directorships among, or reduce the number of directorships in, such
class or classes as shall equalize, as nearly as possible, the number of
directors in each class. In no event will a decrease in the number of directors
shorten the term of any incumbent director.
(c) There shall be no cumulative voting in the election of directors.
Election of directors need not be by written ballot unless the bylaws of the
Corporation so provide.
(d) 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 shall be filled solely by a majority of
the directors then in office (even if less than a quorum) or by the sole
remaining director, and each director so elected shall hold office for a term
that shall coincide with the term of the Class to which such director shall have
been elected.
(e) No director may be removed from office by the stockholders except
for cause with the affirmative vote of the holders of not less than a majority
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.
ARTICLE VII
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
To the greatest extent permitted by applicable law, no director
(including any advisory director) of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, however, the
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foregoing shall not limit the liability of a director (including any advisory
director) (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of Title 8 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
ARTICLE VIII
INDEMNITY
SECTION 8.1 The Corporation shall indemnify 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 by action by or in the right of the Corporation) by
reason of the fact that 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, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against costs, charges, expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person or on such person's behalf in
connection with such action, suit or proceeding and any appeal therefrom, if
such person acted in good faith and in a manner such person 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
such person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a please of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not meet the standards of conduct set forth in this Section 8.1.
SECTION 8.2 The Corporation shall indemnify 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 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, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by such person or on such person's behalf in connection with
the defense or settlement of such action or suit and any appeal therefrom, if
such person acted in good faith and in a manner such person 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 for gross negligence or
misconduct in the performance of such person's duty to the Corporation unless
and only to the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the circumstances
of the case, such person
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is fairly and reasonably entitled to indemnity for such costs, charges and
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 8.3 Notwithstanding the other provisions of this Article VIII,
to the extent that a Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in Sections 8.1 and 8.2, or in the defense of any claim,
issue or matter therein, such person shall be indemnified against all costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by such person or on such person's behalf in connection therewith.
SECTION 8.4 Any indemnification under Sections 8.1 and 8.2 (unless
ordered by a court) shall be paid by the Corporation unless a determination is
made (i) by the Board of Directors by a majority vote of a quorum consisting of
Directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or even if obtainable a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that indemnification of the Director, officer,
employee or agent is not proper in the circumstances because such person has not
met the applicable standards of conduct set forth in Sections 8.1 and 8.2.
SECTION 8.5 Costs, charges and expenses (including attorneys' fees)
incurred by a person referred to in Sections 8.1 and 8.2 in defending a civil or
criminal action, suit or proceeding (including investigations by any government
agency and all costs, charges and expenses incurred in preparing for any
threatened action, suit or proceeding) shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding; provided,
however, that the payment of such costs, charges and expenses incurred by a
Director or officer in such person's capacity as a Director or officer (and not
in any other capacity in which service was or is rendered by such person while a
Director or officer) in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by or on behalf of
the Director or officer to repay all amounts so advanced in the event that it
shall ultimately be determined that such Director or officer is not entitled to
be indemnified by the Corporation as authorized in this Article VIII. No
security shall be required for such undertaking and such undertaking shall be
accepted without reference to the recipient's financial ability to make
repayment. The repayment of such charges and expenses incurred by other
employees and agents of the Corporation which are paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as permitted
by this Section 8.5 may be required upon such terms and conditions, if any, as
the Board of Directors deems appropriate. The Board of Directors may, in the
manner set forth above, and subject to the approval of such Director, officer,
employee or agent of the Corporation, authorize the Corporation's counsel to
represent such person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
SECTION 8.6 Any indemnification under Sections 8.1, 8.2 or 8.3 or
advance of costs, charges and expenses under Section 8.5 shall be made promptly,
and in any event
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within 30 days, upon the written request of the Director, officer, employee or
agent directed to the Secretary of the Corporation. The right to indemnification
or advances as granted by this Article VIII shall be enforceable by the
director, officer, employee or agent in any court of competent jurisdiction if
the Corporation denies such request, in whole or in part, or if no disposition
thereof is made within 30 days. Such person's costs and expenses incurred in
connection with successfully establishing such person's right to indemnification
or advances, in whole or in part, in any such action shall also be indemnified
by the Corporation. It shall be a defense to any such action (other than an
action brought to enforce a claim for the advance of costs, charges and expenses
under Section 8.5 where the required undertaking, if any, has been received by
the Corporation) that the claimant has not met the standard of conduct set forth
in Sections 8.1 or 8.2, but the burden of proving that such standard of conduct
has not been met shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Sections 8.1 and 8.2, nor the fact that there has been an actual determination
by the Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
SECTION 8.7 The indemnification provided by this Article VIII shall not
be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any law (common or statutory), 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 office or while employed by or acting as agent for the Corporation, 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 estate, heirs, executors and
administrators of such person. All rights to indemnification under this Article
VIII shall be deemed to be a contract between the Corporation and each Director,
officer, employee or agent of the Corporation who serves or served in such
capacity at any time while this Article VIII is in effect. No amendment or
repeal of this Article VIII or of any relevant provisions of the Delaware
General Corporation Law or any other applicable laws shall adversely affect or
deny to any Director, officer, employee or agent any rights to indemnification
which such person may have, or change or release any obligations of the
Corporation, under this Article VIII with respect to any costs, charges,
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement which arise out of an action, suit or proceeding based in whole or
substantial part on any act or failure to act, actual or alleged, which takes
place before or while this Article VIII is in effect. The provisions of this
Section 8.7 shall apply to any such action, suit or proceeding, whenever
commenced, including any such action, suit or proceeding after any amendment or
repeal of this Article VIII.
SECTION 8.8 For purposes of this Article VIII:
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(i) "THE CORPORATION" shall include 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, officers,
and employees or agents, so that any person who is or was a Director,
officer, employee or agent 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 or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to the resulting
or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued;
(ii) "OTHER ENTERPRISES" shall include employee benefit plans,
including, but not limited to, any employee benefit plan of the
Corporation;
(iii) "SERVING AT THE REQUEST OF THE CORPORATION" shall include
any service which imposes duties on, or involves services by, a
Director, officer, employee, or agent of the Corporation with respect to
an employee benefit plan, its participants, or beneficiaries, including
acting as a fiduciary thereof;
(iv) "FINES" shall include any penalties and any excise or
similar taxes assessed on a person with respect to an employee benefit
plan;
(v) A person who acted in good faith and in a manner such
person 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 Sections 8.1 and 8.2; and
(vi) Service as a partner, trustee or member of management or
similar committee of a partnership or joint venture, or as a Director,
officer, employee or agent of a corporation which is a partner, trustee
or joint venturer, shall be considered service as a Director, officer,
employee or agent of the partnership, joint venture, trust or other
enterprise.
SECTION 8.9 If this Article VIII or any portion hereof shall be
invalidated on any ground by a court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director, officer, employee and
agent of the Corporation as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article VIII that shall
not have been invalidated and to the full extent permitted by applicable law.
SECTION 8.10 The Corporation shall 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
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agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person and incurred by
such person or on such person's behalf 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 VIII, provided that such insurance is available on acceptable terms
as determined by a vote of a majority of the entire Board of Directors.
ARTICLE IX
VOTING REQUIREMENTS
In addition to any other requirement of Delaware law, transactions of
the Corporation involving merger, consolidation, sale of assets or other actions
resulting in transfer of substantially all of the assets of the Corporation
(whether in one transaction or a series of transactions) shall require either
(i) an affirmative vote of at least 75% of the members of the Board of Directors
and an affirmative vote of the holders of at least 50% of the voting stock of
the Corporation; or (ii) an affirmative vote of at least 50% of the members of
the Board of Directors and an affirmative vote of the holders of at least 75% of
the voting stock of the Corporation.
ARTICLE X
BYLAWS
Except as set forth below, the Bylaws of the Corporation may be amended
or repealed, or new Bylaws may be adopted, (i) by the Board of Directors of the
Corporation at any duly held meeting or pursuant to a written consent in lieu of
such meeting, or (ii) by the holders of a majority of the shares represented at
any duly held meeting of stockholders, provided that notice of such proposed
action shall have been contained in the notice of any such meeting, or pursuant
to a written consent signed by the holders of a majority of the outstanding
shares entitled to vote thereon. The following Bylaw provisions may be amended
or repealed only by an affirmative vote of at least 75% of the members of the
Board of Directors: (a) the provision concerning the number, tenure,
qualification and vacancies of the Board of Directors; and (b) the provision
concerning removal for cause of Directors.
ARTICLE XI
AMENDMENTS TO CERTIFICATE OF INCORPORATION
This Amended and Restated Certificate of Incorporation may be further
amended or restated in accordance with the provisions of Delaware law, except
that, in addition to any other requirement of Delaware law, Articles VI, IX, X
and XI hereof may be amended or repealed only by either (i) an affirmative vote
of at least 75% of the members of the Board of Directors and an affirmative vote
of the holders of at least 50% of the voting stock of the Corporation; or (ii)
an affirmative vote of at least 50% of the members of the Board of Directors and
an affirmative vote of the holders of at least 75% of the voting stock of the
Corporation.
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IN WITNESS WHEREOF, said MercFuel, Inc. has caused this Certificate to
be signed by Wayne Lovett, its Secretary, this 15th day of May, 2001.
MERCFUEL, INC.
By: /s/ Wayne J. Lovett
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Its: Wayne L. Lovett, Secretary
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