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
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
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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
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Jeanne Carnahan, Incorporator
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