UNITED STATES
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): July 22, 2016
Seventy Seven Energy Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36354 | 45-3338422 | ||
| (State or other jurisdiction of incorporation or organization) | (Commission File No.) |
(I.R.S. Employer Identification No.) |
| 777 N.W. 63rd Street Oklahoma City, Oklahoma |
73116 | |||
| (Address of principal executive offices) |
(Zip Code) | |||
(405) 608-7777
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act(17 CFR 240.13e-4(c)) |
EXPLANATORY NOTE
As previously disclosed, on July 14, 2016, the United States Bankruptcy Court for the District of Delaware (the “Court”) issued an order (the “Confirmation Order”) confirming the Joint-Prepackaged Plan of Reorganization (as amended and supplemented, the “Plan”) of Seventy Seven Energy Inc. (the “Company”) and all of its direct and indirect wholly owned subsidiaries (together with the Company, the “Debtors”). The Debtors plan to emerge from Chapter 11 on or about August 1, 2016 (the “Effective Date”), after satisfying the remaining conditions to effectiveness contemplated under the Plan. Although the Debtors anticipate that all conditions that the Debtors must satisfy before the Effective Date, other than the passage of time, will have been satisfied on or prior to such date, the Debtors can make no assurances as to when, or ultimately if, the Plan will become effective. It is also possible that technical amendments could be made to the Plan.
Conversion to Delaware Corporation
As previously disclosed, in accordance with the Confirmation Order and pursuant to the Plan, the Company was authorized to convert from an Oklahoma corporation to a Delaware corporation prior to the Effective Date. The Confirmation Order provides that the Company in its form as a Delaware corporation will be considered as a successor to the Company in its previous form as an Oklahoma Corporation. In order to consummate the conversion, the Company first converted to a Delaware limited liability company and, immediately thereafter, to a Delaware corporation. These conversions occurred on July 22, 2016 and are described in further detail below.
| Item 3.02 | Unregistered Sales of Equity Securities |
To the extent applicable, the description of the conversions in other sections of this Form 8-K is incorporated by reference herein.
In connection with the conversions, the Company, in its form as a Delaware limited liability company (the “Delaware Successor LLC”), issued equity securities (at the rate of one unit for each outstanding common share) to each holder of common shares of the Company, in its prior form as an Oklahoma corporation (the “Oklahoma Predecessor Corporation”), and the shares of the Oklahoma Predecessor Corporation were cancelled without any action required on the part of the shareholders. Immediately thereafter, the Company, in its form as a Delaware corporation (the “Delaware Successor Corporation”), issued shares of common stock (at the rate of one share for each outstanding unit) to each holder of equity securities of the Delaware Successor LLC and the equity securities of the Delaware Successor LLC were cancelled without any action required on the part of the security holders. The Company received no consideration in connection with any issuances of any equity securities in the Conversions. The issuance of the equity securities in connection with the conversions was made pursuant to the Confirmation Order and (to the extent constituting an offer or sale) was exempt from registration under Section 1145 of the Bankruptcy Code.
Upon the Effective Date, as previously disclosed, all of the Company’s existing common stock will be cancelled and the reorganized Company will issue to such stockholders two series of warrants exercisable for an aggregate of 20% of the new common stock at predetermined equity values.
| Item 3.03 | Material Modification to Rights of Security Holders |
The information included in Items 3.02, 5.03 and 8.01 is incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws |
On July 22, 2016, pursuant to a Certificate of Conversion and a Certificate of Formation, the Company was converted from an Oklahoma corporation to a Delaware limited liability company. The Certificate of Conversion is filed as Exhibit 3.1 to this report and is incorporated herein by reference, and the Certificate of Formation is filed as Exhibit 3.2 to this report and is incorporated herein by reference. The limited liability company agreement of the Delaware Successor LLC is filed as Exhibit 3.3 to this report and is incorporated herein by reference.
Immediately upon effectiveness of the conversion in the paragraph immediately above, on July 22, 2016, pursuant to a Certificate of Conversion and a Certificate of Incorporation, the Company was converted from a Delaware limited liability company to a Delaware corporation. The Certificate of Conversion is filed as Exhibit 3.4 to this report and is incorporated herein by reference, and the Certificate of Incorporation is filed as Exhibit 3.5 to this report and is incorporated herein by reference. Upon the emergence from Chapter 11 on the Effective Date, the Company intends to adopt amended and restated bylaws, which will be reported on Form 8-K at such time.
The Certificate of Incorporation provides that the Company is authorized to issue 100,000,000 shares of capital stock, divided into two classes consisting of (a) 90,000,000 shares of common stock, par value $0.01 per share and (b) 10,000,000 shares of preferred stock, par value $0.01 per share.
On the Effective Date, certain holders of shares of common stock (the “SHA Stockholders”) will enter into a Stockholders Agreement with the Company (the “Stockholders Agreement”). The Stockholders Agreement will contain certain terms relating to, among other items, (i) the composition of and rights of the SHA Stockholders to nominate members for election to the board of directors of the Company and (ii) required approval by the SHA Stockholders with respect to certain actions of the Company.
The Certificate of Incorporation provides that the Company’s stockholders may act at an annual meeting of stockholders. The Certificate of Incorporation provides that, subject to the Stockholders Agreement, the stockholders have the right to elect a number of directors to be designated as directors. So long as the SHA Stockholders are entitled to designate persons for nomination as directors pursuant to the Stockholders Agreement, the board will consist of seven directors unless a different number is approved by the SHA Stockholders pursuant to the Stockholders Agreement. Subject to the Stockholders Agreement, a vacancy on the board of directors may be filled by a vote of a majority of the directors in office, and a director appointed to fill a vacancy serves for the remainder of the term of the director in which the vacancy occurred.
The Certificate of Incorporation further provides that Company stockholders may adopt, amend, alter or repeal the Company’s bylaws, provided that any amendment of the bylaws by the stockholders will require approval of the SHA Stockholders to the extent required by the Stockholders Agreement. The Certificate of Incorporation also confers on the Company’s board of directors the power to adopt, amend, alter or repeal the bylaws, subject to the Stockholders Agreement. Subject to the terms of the Stockholders Agreement, the Certificate of Incorporation authorizes the Company’s board of directors, without the approval of its stockholders, to provide for the issuance of all or any shares of the Company’s preferred stock in one or more series and to determine the designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof. The issuance of shares of preferred stock or rights to purchase shares of our preferred stock could discourage an unsolicited acquisition proposal. In addition, under some circumstances, the issuance of preferred stock could adversely affect the voting power of our common stockholders.
The foregoing description of the Certificate of Incorporation is not complete and is qualified in its entirety by reference to the full text of the Certificate of Incorporation, which is filed as Exhibit 3.5 to this report.
| Item 8.01 | Other Events |
As described above, effective July 22, 2016, in accordance with the laws of the State of Delaware and the State of Oklahoma, the Company converted its form of organization from an Oklahoma corporation to a Delaware limited liability company and, immediately thereafter, to a Delaware corporation. As a result of the conversions, the equity holders of the Oklahoma Predecessor Corporation are now the equity holders of the Delaware Successor Corporation. The name of the Company remains “Seventy Seven Energy Inc.”
For purposes of Delaware law, the Delaware Successor Corporation is deemed to be the same entity as the Company before the conversions, and its existence is deemed to have commenced on the date of original incorporation of the Company. Furthermore, under Delaware law, the rights, assets, operations, liabilities and obligations that comprised the going business of the Company before the conversions remain the rights, assets, operations, liabilities and obligations of the Company after the conversions.
Successor Issuer
Pursuant to Rule 12g-3(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Delaware Successor Corporation is the successor registrant to the Oklahoma Predecessor Corporation, the shares of common stock, par value $0.01 per share, of the Delaware Successor Corporation are deemed to be registered under Section 12(b) of the Exchange Act and the Delaware Successor Corporation is subject to the informational requirements of the Exchange Act.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit Number |
Description | |
| 3.1 | Certificate of Conversion from Oklahoma corporation to Delaware limited liability company | |
| 3.2 | Certificate of Formation of Delaware limited liability company | |
| 3.3 | Limited Liability Company Agreement of Seventy Seven Energy LLC (a Delaware limited liability company) | |
| 3.4 | Certificate of Conversion from Delaware limited liability company to Delaware corporation | |
| 3.5 | Certificate of Incorporation of Seventy Seven Energy Inc. (a Delaware corporation) | |
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 hereunto duly authorized.
| July 28, 2016 |
SEVENTY SEVEN ENERGY INC. | |||
|
|
By: |
/s/ Cary Baetz | ||
|
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Cary Baetz | ||
|
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|
Chief Financial Officer and Treasurer | ||
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 | Certificate of Conversion from Oklahoma corporation to Delaware limited liability company | |
| 3.2 | Certificate of Formation of Delaware limited liability company | |
| 3.3 | Limited Liability Company Agreement of Seventy Seven Energy LLC (a Delaware limited liability company) | |
| 3.4 | Certificate of Conversion from Delaware limited liability company to Delaware corporation | |
| 3.5 | Certificate of Incorporation of Seventy Seven Energy Inc. (a Delaware corporation) | |
Exhibit 3.1
CERTIFICATE OF CONVERSION
TO
LIMITED LIABILITY COMPANY
OF
SEVENTY SEVEN ENERGY INC., (an Oklahoma corporation)
TO
SEVENTY SEVEN ENERGY LLC, (a Delaware limited liability company)
Pursuant to Section 18-214 of the Delaware Limited Liability Company Act
and Section 1090.5 of the Oklahoma General Corporation Act
The undersigned, for the purpose of converting SEVENTY SEVEN ENERGY INC., a corporation formed under the laws of the State of Oklahoma (the “Oklahoma Corporation”), to Seventy Seven Energy LLC, a Delaware limited liability company (the “Delaware LLC”), pursuant to Section 1090.5 of the Oklahoma General Corporation Act, Section 18-214 of the Delaware Limited Liability Company Act and Section 1118 of the Oklahoma General Corporation Act, do hereby execute the following Certificate of Conversion:
1. The name of the Oklahoma Corporation as set forth in its Certificate of Incorporation is “SEVENTY SEVEN ENERGY INC.”
2. The Oklahoma Corporation was originally formed as Chesapeake Oilfield Operating, L.L.C. on September 19, 2011, and the jurisdiction of formation when formed was Oklahoma. Chesapeake Oilfield Operating, L.L.C. converted to an Oklahoma corporation named SEVENTY SEVEN ENERGY INC., and filed its original Certificate of Incorporation with the Secretary of State of Oklahoma on June 26, 2014.
3. The name of the Oklahoma Corporation immediately prior to filing this Certificate of Conversion is SEVENTY SEVEN ENERGY INC., and the jurisdiction of formation of such business entity immediately prior to the filing of this Certificate of Conversion is Oklahoma.
4. The name of the Delaware LLC as set forth in its Certificate of Formation is “Seventy Seven Energy LLC” and the jurisdiction of formation of such business entity will be Delaware.
5. This Certificate of Conversion and the Certificate of Formation shall be filed with the Secretary of State of the State of Delaware on July 22, 2016.
6. The effective date of this conversion shall be July 22, 2016.
7. Following the conversion, the Delaware LLC shall elect to be treated from inception as an association taxable as a corporation for U.S. federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3.
8. The conversion of the Oklahoma Corporation to the Delaware LLC is intended to be treated as a reorganization under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
9. Each issued and outstanding share of capital stock of the Oklahoma Corporation immediately prior to the conversion shall be cancelled upon the effectiveness of this Certificate of Conversion and will be deemed to be one (1) issued and outstanding Unit of the Delaware LLC, without any action required on the part of the LLC or the former holder of such share of capital stock of the Oklahoma Corporation, so the equity holders of the Oklahoma Corporation immediately prior to the conversion shall be the equity holders of the Delaware LLC immediately following the conversion.
10. The Delaware LLC may be served with process in the State of Oklahoma in any action, suit or proceeding for enforcement of any obligation of the Delaware LLC arising while it was a corporation of the State of Oklahoma, and the Delaware LLC irrevocably appoints the Secretary of State of the State of Oklahoma as its agent to accept service of process in any such action, suit or proceeding. The address of the Delaware LLC to which a copy of the process shall be mailed is 777 N.W. 63rd Street, Oklahoma City, Oklahoma, 73116.
11. The conversion has been approved in accordance with the provisions of Section 18-214 of the Delaware Limited Liability Act and Section 1090.5 of the Oklahoma General Corporation Act, pursuant to the authority granted to the Oklahoma Corporation under Section 1118 of the Oklahoma General Corporation Act to put into effect and carry out the Joint Prepackaged Chapter 11 Plan of Reorganization of Seventy Seven Finance Inc. and its Affiliated Debtors (Case No. 16-11409 (LSS)) (the “Plan”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), as confirmed by order (the “Order”) of the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) entered on July 14, 2016. Provision for the making of this Certificate of Conversion is contained in the Order of the Bankruptcy Court having jurisdiction under the Bankruptcy Code for the reorganization of the Oklahoma Corporation.
2
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Conversion to Limited Liability Company as of this 22nd of July, 2016.
| SEVENTY SEVEN ENERGY INC. | ||
| BY: | /s/ Jerry Winchester | |
| Name: Jerry Winchester | ||
| Title: President and Chief Executive Officer | ||
| SEVENTY SEVEN ENERGY LLC | ||
| BY: | /s/ Jerry Winchester | |
| Name: Jerry Winchester | ||
| Title: Manager | ||
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Exhibit 3.2
CERTIFICATE OF FORMATION
OF
SEVENTY SEVEN ENERGY LLC
This Certificate of Formation of Seventy Seven Energy LLC (the “Company”) is being duly executed and filed to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.).
FIRST: The name of the limited liability company formed hereby is “Seventy Seven Energy LLC”.
SECOND: The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Corporation Trust Center, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: This Certificate of Formation shall be effective when filed.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of this 22nd day of July, 2016.
| By: | /s/ Jerry Winchester | |
| Name: | Jerry Winchester | |
| Title: | Authorized Person |
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Exhibit 3.3
LIMITED LIABILITY COMPANY AGREEMENT
OF
SEVENTY SEVEN ENERGY LLC
This Limited Liability Company Agreement (this “Agreement”) of Seventy Seven Energy LLC (the “Company”) is adopted as of July 22, 2016, by the Company as the limited liability company agreement of the Company.
WHEREAS, SEVENTY SEVEN ENERGY INC. (the “Oklahoma Corporation”) was previously formed as a Oklahoma corporation;
WHEREAS, the conversion of the Oklahoma Corporation to the Company was approved in accordance with Section 1118 of Title 18 of the Oklahoma Statutes;
WHEREAS, on the date hereof, the Oklahoma Corporation was converted to a limited liability company (the “Conversion”) pursuant to Section 1090.5 of Title 18 of the Oklahoma Statutes and Section 18-214 of the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as amended from time to time (the “Act”), by filing with the Secretary of State of the State of Delaware of the Certificate of Conversion to Limited Liability Company of the Oklahoma Corporation to the Company (the “Certificate of Conversion”) and the Certificate of Formation of the Company (the “Certificate of Formation”);
WHEREAS, pursuant to this Agreement and the Conversion, each issued and outstanding share of capital stock of the Oklahoma Corporation immediately prior to the Conversion converted into one (1) Unit (as defined below) of the Company; and
WHEREAS, pursuant to this Agreement and the Conversion, each stockholder of the Oklahoma Corporation immediately prior to the Conversion is automatically admitted as a Member (as defined below) of the Company.
NOW, THEREFORE, the Members hereby agree as follows:
1. Conversion of the Oklahoma Corporation; Name. Effective as of the time of the Conversion, (i) the Certificate of Incorporation of the Oklahoma Corporation and the By-Laws of the Oklahoma Corporation, each in effect on the date hereof (the “Oklahoma Organizational Documents”), are replaced and superseded in their entirety by this Agreement in respect of all periods beginning on or after the Conversion, (ii) each stockholder of the Oklahoma Corporation immediately prior to the Conversion is automatically admitted to the Company as a Member of the Company by virtue of the Conversion, (iii) each issued and outstanding share of capital stock of the Oklahoma Corporation immediately prior to the Conversion is converted into one (1) Unit of the Company, and (iv) all certificates evidencing shares of stock in the Oklahoma Corporation issued by the Oklahoma Corporation and outstanding immediately prior to the Conversion shall be surrendered to the Company and shall be canceled on the books and records of the Oklahoma Corporation. The name of the limited liability company is Seventy Seven Energy LLC. The Company is a separate legal entity distinct from its members. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation in accordance with the Act.
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2. Certificates. Jerry Winchester, as an “authorized person” within the meaning of the Act, has executed, delivered and filed the Certificate of Formation and the Certificate of Conversion with the Secretary of State of the State of Delaware (such filing being hereby approved and ratified in all respects). Upon the filing of the Certificate of Formation and the Certificate of Conversion with the Secretary of State of the State of Delaware, his powers as continued and each Director and Officer thereupon became a designated authorized person within the meaning of the Act. Any Director or Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act.
4. Powers. The Company (i) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 3 and (ii) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.
5. Principal Business Office. The principal business office of the Company shall be at such location as may hereafter be determined by the Board.
6. Registered Office. The address of the initial registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Corporation Trust Center, in the City of Wilmington, County of New Castle, 19801.
7. Registered Agent. The name and address of the initial registered agent of the Company for service of process on the Company in the State of Delaware are The Corporation Trust Company, 1209 Orange Street, Corporation Trust Center, in the City of Wilmington, County of New Castle, 19801.
8. Members; Interests.
a. General. The limited liability company interests in the Company shall be represented by “Units.” As of the effective date of the Conversion, each holder of stock of the Oklahoma Corporation will receive one (1) Unit in exchange for each share of stock of the Oklahoma Corporation held by such holder as provided in paragraph 11 of the order (Docket No. 192) of the United States Bankruptcy Court for the District of Delaware confirming the Joint Prepackaged Chapter 11 Plan of Reorganization of Seventy Seven Energy Inc. (Docket No. 17).
b. Consents. Whenever this Agreement provides that an action may be taken by or with the consent of the Members, such action may be taken or shall be consented to by Members holding at least a majority of the Units then outstanding.
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c. Certificates. The Units may be evidenced by certificates (the “Unit Certificates”), and each such Unit Certificate shall be executed by an Officer or a Director on behalf of the Company. The Company shall maintain a register (the “Register”) setting forth the name and address of each Member and the Unit Certificate number(s) and number of Units held by each Member.
d. Transfers. The Company shall maintain books, including the Register, for the purpose of registering the transfer of Units. A transfer of Units shall be effected by the Company’s registering the transfer on the books and records of the Company (including the Register) upon delivery of an endorsed Unit Certificate representing the Units being transferred. Upon any transfer of Units, any Unit Certificates evidencing such transferred Units shall be marked cancelled by the Company, with the date of cancellation, and shall be immediately placed in a certificate book maintained by the Company for that purpose, and a new Unit Certificate shall be issued by the Company to the transferee holding such Units. If a Member does not transfer all of its Units, the Company shall, following such transfer, issue a new Unit Certificate to the transferor Member reflecting the number of Units still held by such transferor Member following such transfer.
9. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Members shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member of the Company.
10. Capital Contributions. The Members have contributed the amounts of cash or other property to the Company as set forth in the books and records of the Company.
11. Additional Contributions. No Member is required to make any additional capital contribution to the Company. However, a Member may make additional capital contributions to the Company with the written consent of all of the Members.
12. Allocation of Profits and Losses. The Company’s profits and losses shall be allocated pro rata in accordance with the number of Units owned by each Member.
13. Distributions. Distributions shall be made to the Members at the times and in the aggregate amounts determined by the Board. Such distributions shall be allocated pro rata in accordance with the number of Units owned by each Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company if such distribution would violate the Act or other applicable law.
14. Management.
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a. Management of the Company. The business and affairs of the Company shall be managed and controlled by a board of managers (the “Board”). The members of the Board (the “Directors”) shall be “managers” within the meaning of the Act. The Board shall have full and complete discretion to manage and control the business and affairs of the Company, to make all decisions affecting the business and affairs of the Company and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Company.
b. Composition; Directors. The Board shall be composed of seven (7) Directors designated by the Members; provided that the Members may from time to time increase or decrease the number of Directors. The directors of the Oklahoma Corporation immediately prior to the Conversion shall be, and are hereby appointed as, the Directors of the Company as of the date hereof.
c. Meetings. Regular meetings of the Board may be called on at least twenty four (24) hours notice to each Director, either personally, by telephone, by mail, by telecopier, by electronic mail or by any other means of communication reasonably calculated to give notice, at such times and at such places as shall from time to time be determined by the Board, or the chairman thereof (if any), as applicable. Any Director may call a special meeting of the Board on not less than twenty four (24) hours notice to each other Director, either personally, by telephone, by mail, by telecopier, by electronic mail or by any other means of communication reasonably calculated to give notice. Notice of a special meeting need not be given to any Director if a written waiver of notice, executed by such Director before or after the meeting, is filed with the records of the meeting, or to any Director who attends the meeting without protesting the lack of notice prior thereto or at its commencement. The notice shall state the purposes of the meeting.
d. Quorum and Acts of the Board. At all duly called meetings of the Board, a majority of the total number of Directors shall be required to establish a quorum for the transaction of business. If a quorum shall not be present at any meeting of the Board, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. No action may be taken by the Board at any meeting under this Agreement or the Act without the consent of a majority of the Directors present at the meeting. Each Director shall be entitled to one vote.
e. Telephonic or Video Communications. Members of the Board may participate in any meeting of the Board by means of conference telephone, video conference or similar communications equipment by means of which all persons participating in such meeting can hear and speak to each other, and such participation in such meeting shall constitute presence in person at the meeting.
f. Action by Consent. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting and without a vote, if a consent or consents in writing (including by email), setting forth the action so taken, shall be signed by the requisite number of Directors whose consent would be needed to take such action at a duly-held meeting of the Board at which all Directors were present (provided, that for such purposes an electronic signature shall be valid).
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g. Removal of Directors; Resignations; Vacancies. Any Director or the entire Board may be removed or expelled, with or without cause, at any time by the Members. Any Director may resign at any time upon notice to the Company. Unless otherwise provided by law, any newly created Board seat or any vacancy occurring in the Board for any reason may be filled by the Members.
h. Officers. The Board may, from time to time as it deems advisable, appoint officers of the Company (the “Officers”) and assign in writing titles (including, without limitation, President, Vice President, Secretary, and Treasurer) to any such person. Unless the Board decides otherwise, if the title is one commonly used for officers of a business corporation formed under the General Corporation Law of the State of Delaware, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. Any delegation pursuant to this Section 14(h) may be revoked at any time by the Board. The officers of the Oklahoma Corporation immediately prior to the Conversion shall be, and are hereby appointed as, the Officers of the Company as of the date hereof.
i. Authorization. Notwithstanding any other provision of this Agreement, each Director and each Officer, acting singly, is authorized to execute and deliver any document on behalf of the Company without any vote or consent of any other person.
15. Other Business. The Members, Directors and Officers, and any person or entity affiliated with any of the Members, Directors or Officers, may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others. None of the Company or the other Members shall have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.
16. Exculpation and Indemnification. No Member, Director or Officer (collectively, the “Covered Persons”) shall be liable to the Company, any Member or any other person or entity bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct. A Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in its capacity as a Covered Person to the same extent as such Covered Person would have been entitled to indemnification therefor immediately prior to the Conversion under the Oklahoma Organizational Documents; provided, however, that any indemnity under this Section 16 shall be provided out of and to the extent of Company assets only, and no Member shall have personal liability on account thereof.
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17. Assignments. A Member may not assign in whole or in part its limited liability company interest in the Company without the written consent of the other Members. The transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement. If a Member transfers all of its interest in the Company pursuant to this Agreement, such admission shall be deemed effective immediately prior to the transfer, and, immediately following such admission, the transferor Member shall cease to be a member of the Company.
18. Resignation. A Member may not resign from the Company without the written consent of the other Members.
19. Admission of Additional Members. One (1) or more additional members of the Company may be admitted to the Company with the written consent of all of the Members.
20. Conversion. Notwithstanding any other provision of this Agreement, no vote or any other consent of the Board, any Director, any Member, or any other person shall be required to convert the Company into a Delaware corporation (such conversion, the “Second Conversion” and the resulting corporation of the Second Conversion, the “Delaware Corporation”) or take any action necessary, advisable or appropriate in order to carry out the Second Conversion. Each Officer and Director of the Company is authorized and empowered to perform all such acts and things and execute, file, deliver or record in the name and on behalf of the Company, all such certificates, instruments, agreements or other documents, and to make all such payments, as they, in their judgment, or in the judgment of any one or more of them, may deem necessary, advisable or appropriate in order to carry out the Second Conversion, including without limitation, the execution and filing with the Secretary of State of the State of Delaware of a certificate of conversion of the Company and a certificate of incorporation of the Delaware Corporation.
21. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of all the Members to dissolve the Company, (ii) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act, or (iii) any time there are no members of the Company unless the Company is continued without dissolution in accordance with this Agreement or the Act.
b. In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.
22. Separability of Provisions. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.
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23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement.
24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings or agreements between the parties.
25. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.
26. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by all of the Members.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned hereby adopts this Agreement as the limited liability company agreement of the Company as of this 22nd day of July, 2016.
| SEVENTY SEVEN ENERGY LLC | ||
| By: | /s/ Jerry Winchester | |
| Name: Jerry Winchester | ||
| Title: Manager | ||
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Exhibit 3.4
CERTIFICATE OF CONVERSION TO CORPORATION
OF
SEVENTY SEVEN ENERGY LLC, (a Delaware limited liability company)
TO
SEVENTY SEVEN ENERGY INC., (a Delaware corporation)
Pursuant to Section 265(b) of the General Corporation Law of the State of Delaware
and Section 18-216 of the Delaware Limited Liability Company Act
This Certificate of Conversion to Corporation, dated as of July 22, 2016, is being duly executed and filed by Seventy Seven Energy LLC, a Delaware limited liability company (the “LLC”), to convert the LLC to Seventy Seven Energy Inc., a Delaware corporation (the “Corporation”), under the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.) and the General Corporation Law of the State of Delaware (8 Del. C. § 101, et seq.).
1. The LLC was originally formed as Chesapeake Oilfield Operating, L.L.C. on September 19, 2011, and the jurisdiction of formation when formed was Oklahoma.
2. The LLC was formed on July 22, 2016. The LLC was formed under the laws of the State of Delaware and was a limited liability company under the laws of the State of Delaware immediately prior to the filing of this Certificate of Conversion. The name and type of entity of the LLC immediately prior to the filing of this Certificate of Conversion was “Seventy Seven Energy LLC”, a Delaware limited liability company.
3. The name of the Corporation as set forth in the Certificate of Incorporation of the Corporation filed in accordance with Section 265(b) of the General Corporation Law of the State of Delaware is “Seventy Seven Energy Inc.”, a Delaware corporation.
4. As of the conversion, the LLC will have an election in effect to be treated as an association taxable as a corporation for U.S. federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3.
5. The conversion of the LLC to the Corporation is intended to be treated as a reorganization under Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
6. Each outstanding Unit of the LLC immediately prior to the conversion shall be cancelled upon the effectiveness of this Certificate of Conversion and will be deemed to be one (1) issued and outstanding share of Common Stock, par value $0.01 per share, of the Corporation, without any action required on the part of the Corporation or the former holder of such Unit of the LLC, so the equity holders of the LLC immediately prior to the conversion shall be the equity holders of the Corporation immediately following the conversion.
7. The conversion has been approved in accordance with the provisions of Sections 265(b) of the General Corporation Law of the State of Delaware and Section 18-216 of the Delaware Limited Liability Company Act, to put into effect and carry out the Joint Prepackaged Chapter 11 Plan of Reorganization of Seventy Seven Finance Inc. and its Affiliated Debtors (Case No. 16-11409 (LSS)) (the “Plan”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), as confirmed by order (the “Order”) of the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) entered on July 14, 2016. Provision for the making of this Certificate of Conversion is contained in the Order of the Bankruptcy Court having jurisdiction under the Bankruptcy Code for the reorganization of the Corporation.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Conversion as of this 22nd day of July, 2016.
| SEVENTY SEVEN ENERGY LLC | ||
| BY: | /s/ Jerry Winchester | |
| Name: Jerry Winchester | ||
| Title: Manager | ||
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Exhibit 3.5
CERTIFICATE OF INCORPORATION
OF
SEVENTY SEVEN ENERGY INC.
THE UNDERSIGNED, being a natural person, hereby certifies, for purposes of organizing a corporation under the General Corporation Law of the State of Delaware (the “DGCL”), that:
1. The name of the corporation is Seventy Seven Energy Inc. (the “Corporation”).
2. The original Articles of Organization were filed with the Secretary of State of the State of Oklahoma on September 19, 2011 under the name “Chesapeake Oilfield Operating, L.L.C.” Chesapeake Oilfield Operating, L.L.C. converted from a limited liability company to a corporation with the name of “Seventy Seven Energy Inc.” and in connection therewith, filed a Certificate of Incorporation with the Secretary of State of the State of Oklahoma on June 27, 2014.
3. The Certificate of Incorporation of the Corporation (this “Certificate of Incorporation”) is hereby stated in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Seventy Seven Energy Inc.
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 DGCL.
ARTICLE III
REGISTERED AGENT
The street address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Corporation Trust Center, in the City of Wilmington, County of New Castle, 19801, and the name of the Corporation’s initial registered agent at such address is The Corporation Trust Company.
ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of capital stock that the Corporation is authorized to issue is 100,000,000 shares, divided into two classes consisting of (a) 90,000,000 shares of common stock, par value $0.01 per share (“Common Stock”), and (b) 10,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”).
Section 4.2 Preferred Stock.
(a) Subject to the terms of the Stockholders Agreement, shares of Preferred Stock may be issued in one or more series from time to time, with each such series to consist of such number of shares and to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing for the issuance of such series adopted by the board of directors of the Corporation (the “Board”) and included in a certificate of designations (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority, to the full extent now or hereafter provided by law, to adopt any such resolution or resolutions. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the distinctive designation of that series;
(ii) the dividend rate or rates on the shares of that series, the terms and conditions upon which and the periods in respect of which dividends shall be payable, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
(iv) whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board shall determine;
(v) whether the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, and the amount per share payable in the event of redemption, which amount may vary under different conditions and at different redemption dates;
(vi) whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
(vii) the rights of the shares of that series in the event of voluntary or involuntary liquidation, distribution of assets, dissolution or winding up of the corporation, and the relative rights of priority, if any, of payment of shares of that series; and
(viii) any other relative rights, powers, and preferences, and the qualifications, limitations and restrictions thereof, of that series.
(b) Except as otherwise required by law or this Certificate of Incorporation (including a Preferred Stock Designation), holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any amendment to any
Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or pursuant to the DGCL.
Section 4.3 Common Stock.
(a) Except as expressly set forth otherwise herein, the Common Stock shall have (i) all rights and privileges typically associated with such securities as set forth in the DGCL, including, without limitation, the right to receive dividends, the right to vote, subject to Section 4.2(b), on all matters presented to the holders of Common Stock for a vote and the rights upon a liquidation and (ii) the additional rights and privileges set hereinafter set forth.
(b) Subject to the rights of the Preferred Stock, dividends may be paid on the Common Stock, as and when declared by the Board, out of the assets of the Corporation legally available for the payment of such dividends. If and when dividends on Common Stock are declared payable from time to time by the Board, whether payable in cash, in property or in shares of capital stock of the Corporation, the holders of Common Stock shall be entitled to share equally, pro rata, based on the number of shares of Common Stock held by each such holder, in such dividends.
(c) Subject to Section 4.2(b), each holder of shares of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote.
Section 4.4 Stockholders Agreement.
(a) Upon the Plan Effective Date certain holders of shares of Common Stock (the “SHA Stockholders”) shall enter into a Stockholders Agreement, dated as of the Plan Effective Date, among the Corporation and the SHA Stockholders (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions thereof, the “Stockholders Agreement”). The Stockholders Agreement will contain certain terms relating to, among other items, (i) the composition of and rights of the SHA Stockholders to nominate members for election to the board of directors of the Corporation and (ii) required approval by the SHA Stockholders with respect to certain actions of the Corporation. The Stockholders Agreement will terminate and cease to be of further effect in accordance with the terms set forth therein. A SHA Stockholder will cease to be a party to or otherwise have rights under the Stockholders Agreement at such time as such SHA Stockholder (together with its Affiliates) ceases to own, of record or beneficially (as determined under Rule 13d-3 of the Exchange Act), at least 5% of the outstanding Common Stock.
(b) The Corporation shall furnish without charge to each holder of record of shares of Common Stock a copy of the Stockholders Agreement upon written request to the Corporation at its principal place of business.
Section 4.5 Nonvoting Equity Securities. The Corporation shall not issue nonvoting equity securities; provided, however the foregoing restriction shall (i) have no further force and effect beyond that required under Section 1123(a)(6) of Chapter 11 of Title 11 of the Bankruptcy Code, (ii) only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the Corporation, and (iii) in all events may be amended or eliminated in accordance with applicable law as from time to time may be in effect. The prohibition on the issuance of nonvoting equity securities is included in this Certificate of Incorporation in compliance with Section 1123(a)(6) of the Bankruptcy Code.
ARTICLE V
DIRECTORS
Section 5.1 Generally. The annual meeting of the stockholders for the election of the directors of the Corporation (the “Directors”) and for the transaction of such other business as may properly come before the meeting shall be held at such date, time and place, if any, as shall be determined solely by the resolution of the Board in its sole and absolute discretion. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board, subject to the Stockholders Agreement. Subject to the following paragraph, the stockholders shall have the right to elect a number of Directors of the Board (as set forth in the By-Laws) to be designated as Directors, in accordance with the By-Laws. The number of Directors may be increased or decreased from time to time as provided in the By-Laws. With respect to each matter brought before the Board (or any committee thereof) for vote, each Director shall be entitled to cast one vote.
Section 5.2 Number, Class and Term. Subject to the terms of the Stockholders Agreement, the number of Directors that shall constitute the whole Board shall be fixed from time to time by a majority of the Directors then in office as provided in the By-Laws, subject to an increase in the number of Directors by reason of any provisions contained in or established pursuant to Section 4.2 or this Article V; provided that, for so long as the SHA Stockholders are entitled to designate persons for nomination as Directors pursuant to the Stockholders Agreement, the whole Board shall consist of seven (7) Directors unless a different number is approved by the SHA Stockholders as required under the Stockholders Agreement. No decrease in the number of Directors shall shorten the term of any incumbent Director. Except for the terms of such additional Directors, if any, as elected by the holders of any series of Preferred stock and as provided for or fixed pursuant to the provisions of Section 4.2 hereof, subject to the terms of the Stockholders Agreement, each Director shall serve for a term ending on the date of the next annual meeting following the annual meeting at which such Director was elected; provided, that the term of each Director shall continue until the election and qualification of a successor and be subject to such Director’s earlier death, resignation or removal.
Section 5.3 Election. Except with respect to vacancies or as otherwise provided in the Stockholders Agreement, as provided in the By-Laws of the Corporation, directors shall be elected by a plurality of the votes present in person or represented by proxy at the annual meetings of stockholders and entitled to vote thereon, and each director so elected shall hold office until the next annual meeting and until his successor is duly elected and qualified or until his earlier death, resignation, disqualification or removal.
Section 5.4 Vacancies. Subject to the terms of the Stockholders Agreement and rights of the holders of one or more series of Preferred Stock then outstanding as provided for or fixed pursuant to the provisions of Section 4.2 or the By-Laws, vacancies on the Board by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, and newly created directorships resulting from any increase in the authorized number of Directors shall be solely filled by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director and shall not be filled by the stockholders. A Director elected to fill a vacancy or a newly created directorship shall hold office until the next election of the class for which such Director shall have been chosen, subject to the election and qualification of a successor and to such Director’s earlier death, resignation or removal.
Section 5.5 No Written Ballot Required. Unless and except to the extent that the By-Laws shall so require, the election of directors need not be by written ballot.
Section 5.6 Cumulative Voting. There shall not be cumulative voting by stockholders in the election of Directors.
ARTICLE VI
LIMITATION OF DIRECTOR LIABILITY;
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 Limitation of Director Liability. To the fullest extent that the DGCL or any other law of the State of Delaware, as the same exists or may hereafter be amended, permits the limitation or elimination of the liability of directors, no person who is or was a director of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or amendment of this Section 6.1 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this Section 6.1 will, unless otherwise required by applicable law, be prospective only (except to the extent such amendment or change in law permits the Corporation to further limit or eliminate the liability of directors) and shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or amendment or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 6.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent, against all expenses, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection with such proceeding. The right to indemnification conferred by this Section 6.2 shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any such proceeding in advance of its final disposition; provided, however, that, if the DGCL requires, an advancement of expenses shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that the indemnitee is not entitled to be indemnified for the expenses under this Section 6.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 6.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 6.2, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The Corporation hereby acknowledges that certain Directors (the “Specified Persons”) may have rights to indemnification and advancement of expenses provided by a stockholder of the Corporation or its affiliates (directly or through insurance obtained by any such entity) (collectively, the “Stockholder Indemnitors”). The Corporation hereby agrees and acknowledges that (i) it is the indemnitor of first resort with respect to the Specified Persons, (ii) it shall be required to advance the full amount of expenses incurred by the Specified Persons, as required by the terms of this Section 6.2, without regard to any rights the Specified Persons may have against the Stockholder Indemnitors and (iii) it irrevocably waives, relinquishes and releases the Stockholder Indemnitors from any and all claims against the Stockholder Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Corporation further agrees that no advancement or payment by the Stockholder Indemnitors on behalf of the Corporation with respect to any claim for which the Specified Persons have sought indemnification from the Corporation shall affect the foregoing and the Stockholder Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Specified Persons against the Corporation. These rights shall be a contract right.
(c) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 6.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Certificate of Incorporation, the By-Laws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(d) Any repeal or amendment of this Section 6.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this Section 6.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(e) This Section 6.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
ARTICLE VII
BY-LAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the By-Laws of the Corporation, subject to the Stockholders Agreement. The By-Laws also may be adopted, amended, altered or repealed by the stockholders; provided that any amendment of the By-Laws by the stockholders shall require approval of the SHA Stockholders to the extent required by the Stockholders Agreement.
ARTICLE VIII
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), in the manner now or hereafter prescribed by this Certificate of Incorporation and the DGCL, subject to the Stockholders Agreement; and except as set forth in Article VI, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article VIII.
ARTICLE IX
INCORPORATOR
The name of the incorporator of the Corporation is David Treadwell, and the mailing address of such incorporator is 777 N.W. 63rd Street, Oklahoma City, OK 73116.
ARTICLE X
CERTAIN DEFINITIONS
As used in this Certificate of Incorporation, the following terms shall have the following meanings:
| (a) | “Affiliate” means, with respect to any Person, any Person who, directly or indirectly, controls, is controlled by or is under common control with that Person, and the term “control” (including the terms “controlled”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract (including proxy) or otherwise; provided, however, that for the avoidance of doubt no stockholder shall be deemed an affiliate of any other stockholder solely on account of ownership of securities of the Corporation or being party to the Stockholders Agreement, and no stockholder shall be deemed an affiliate of the Corporation solely on account of being party to the Stockholders Agreement. |
| (b) | “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. |
| (c) | “Person” means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, partnership, association, trust, joint venture or any other entity, or a governmental agency or political subdivision thereof. |
| (d) | “Plan” means the Joint Prepackaged Chapter 11 Plan of Reorganization of Seventy Seven Finance Inc. and its Affiliated Debtors (as supplemented). |
| (e) | “Plan Effective Date” means the “Effective Date” as defined in the Plan. |
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Incorporation on this 22nd day of July, 2016.
| /s/ David Treadwell |
| Name: David Treadwell |
| Title: Senior Vice President, General Counsel and Secretary |