CERTIFICATE OF INCORPORATION
OF
COMPASS AEROSPACE CORPORATION
--------------------------------
FIRST. The name of this corporation shall be:
COMPASS AEROSPACE CORPORATION
SECOND. Its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD. The purpose or purposes of the corporation shall be:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which this
corporation is authorized to issue is:
Ten Million (10,000,000) Shares with .01 par value per share.
FIFTH. The name and address of the incorporator is as
follows:
Marian M. Luther
Morgan, Lewis & Bockius LLP
801 S. Grand Avenue, Suite 2200
Los Angeles, CA 90017
SIXTH. The Board of Directors shall have the power to adopt,
amend or repeal the bylaws.
SEVENTH. No director shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable
law, (i) for 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 of a knowing violation of law, (iii) pursuant
to Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which director derived an improper personal benefit. No
amendment to or repeal of this Article Seventh shall apply to or have any
effect on the liability or
alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment.
IN WITNESS WHEREOF, The undersigned being the incorporator
hereinbefore named, has executed, signed and acknowledged this certificate of
incorporation this 21st day of October, A.D., 1997.
/s/ Marian M. Luther
--------------------------------
Marian M. Luther
Incorporator
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COMPASS AEROSPACE CORPORATION
COMPASS AEROSPACE CORPORATION, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That pursuant to the written consent of the Sole
Incorporator of COMPASS AEROSPACE CORPORATION, given in accordance with
Section 107 of the General Corporation Law of the State of Delaware,
resolutions were duly adopted setting forth the following amendment:
RESOLVED, that the Fourth Article of the Certificate of
Incorporation of the Corporation be, and it hereby is, amended
to read as follows:
"The total number of shares of stock which this
corporation is authorized to issue is:
Twenty Million (20,000,000) Shares with .01 par value
per share."
SECOND: That said amendment was duly adopted in accordance
with the provisions of Section 241 of the General Corporation Law of the
State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this
certificate to be signed by Marian M. Luther as of this 27th day of October,
1997.
/s/ Marian M. Luther
----------------------------
Marian M. Luther, Sole Incorporator
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COMPASS AEROSPACE CORPORATION
Pursuant to Section 242 of the Delaware
General Corporation Law
COMPASS AEROSPACE CORPORATION, a Delaware corporation, hereby
certifies as follows:
FIRST: The Certificate of Incorporation of the Corporation
was filed in the Office of the Secretary of State of Delaware on October 21,
1997 and a certified copy was recorded in the Office of the New Castle County
Recorder of Deeds, Delaware. The Certificate of Incorporation was amended on
October 28, 1997 by a Certificate of Amendment filed in the Office of the
Secretary of State of Delaware on October 28, 1997 and a certified copy was
recorded in the Office of the New Castle County Recorder of Deeds, Delaware.
SECOND: That the following resolution was duly adopted
setting forth the following amendment:
RESOLVED, that the Fourth Article of the Certificate of
Incorporation of the Corporation be, and it hereby is, amended
to read as follows:
A. AUTHORIZED SHARES
"Section 1. AUTHORIZED SHARES. The total number of shares
of capital stock which the Corporation has authority to issue is
36,000,000 shares, consisting of:
(a) 30,000,000 shares of Class A Common Stock, par
value $0.01 per share (the "CLASS A COMMON");
and
(b) 6,000,000 shares of Class B Common Stock, par
value $0.01 per share (the "CLASS B COMMON").
The Class A Common and the Class B Common are hereinafter
collectively referred to as the "COMMON STOCK."
Section 2. AMENDMENT. Any amendment or modification shall
be binding and effective with respect to subsection 1(a) of this
Part A of this Article IV only with the prior written consent of
the holders of a majority of the Common Stock outstanding at the
time such action is taken (voting as a single class). Any
amendment or modification shall be binding and effective with
respect to any provision of this Part A of this Article IV
(other than subsection 1(a) hereof, which shall be governed by
the preceding sentence) only with the prior written consent of
the holders of a majority of the Class B Common outstanding at
the time such action is taken.
B. COMMON STOCK
Except as otherwise provided in this Section B or as otherwise
required by applicable law, all shares of Class A Common and
Class B Common shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications,
limitations and restrictions.
Section 1. VOTING RIGHTS. Except as otherwise provided in
this Section B or as otherwise required by applicable law, (a)
the holders of Class A Common shall be entitled to one vote per
share on all matters to be voted on by the stockholders of the
Corporation, and (b) the holders of Class B Common shall have no
right to vote on any matters to be voted on by the stockholders
of the Corporation; PROVIDED that the holders of Class B Common
shall have the right to vote as a separate class, on any merger
or consolidation of the Corporation with or into another entity
or entities, or any recapitalization or reorganization, in which
such shares of Class B Common would receive or be exchanged for
consideration different on a per share basis from consideration
received with respect to or in exchange for the shares of Class
A Common or would otherwise be treated differently from shares
of Class A Common in connection with such transaction; PROVIDED,
HOWEVER, that a transaction in which the holders of Class B
Common receive securities substantially similar to those
received by the holders of Class A Common, except that such
securities received by such holders of Class B Common contain
terms and restrictions substantially similar to those
specifically applicable to the Class B Common, pursuant to this
Article IV, shall not require the affirmative vote of the
holders of the Class B Common.
Section 2. DIVIDENDS. As and when dividends are declared
or paid with respect to the Common Stock, whether in cash,
property or securities of the Corporation, the holders of Class
A Common and the holders of Class B Common shall be entitled to
receive such dividends pro rata at the same rate per share of
each class of Common Stock; PROVIDED that (i) if dividends are
declared which are payable in shares of Class A Common or Class
B Common, dividends shall be declared which are payable at the
same rate on all classes of stock, and the dividends payable in
shares of Class A Common shall be payable to holders of that
class, and the dividends payable in shares of Class B Common
shall be payable to holders of that class of stock and (ii) if
the dividends consist of other voting securities of the
Corporation, the Corporation shall make available to each
holder of Class B Common, at such holder's request, dividends
consisting of non-voting securities of the Corporation which are
otherwise identical to the voting securities and which are
convertible into or exchangeable for such voting securities on
the same terms as the Class B Common is convertible.
Section 3. LIQUIDATION. The holders of the Class A Common
and the Class B Common shall be entitled to participate ratably
on a per share basis in all distributions to the holders of
Common Stock in any liquidation, dissolution or winding up of
the Corporation.
Section 4. CONVERSION.
4A. CONVERSION OF CLASS B COMMON.
(i) Upon the occurrence (or the expected occurrence
as described in (iii) below) of any Conversion Event,
each holder of Class B Common shall be entitled to
convert any or all of the shares of such holder's Class
B Common into the same number of shares of Class A
Common.
(ii) For purposes of this paragraph 4A, a "Conversion
Event" shall mean (a) any public offering or public sale
of securities of the Corporation (including a public
offering registered under the 1933 Act and a public sale
pursuant to Rule 144 of the Securities and Exchange
Commission or any similar rule then in force), (b) any
sale of securities of the Corporation to a person or
group of persons (within the meaning of the 1934 Act)
if, after such sale, such person or group of persons in
the aggregate would own or control securities which
possess in the aggregate the ordinary voting power to
elect a majority of the Corporation's directors
(provided that such sale has been approved by the Board
or a committee thereof), (c) any sale of securities of
the Corporation to a person or group of persons (within
the meaning of the 1934 Act) if, after such sale, such
person or group of persons in the aggregate would own or
control securities of the Corporation (excluding any
Class B Common being converted and disposed of in
connection with such Conversion Event) which possess in
the aggregate the ordinary voting power to elect a
majority of the Corporation's directors, (d) any sale of
securities of the Corporation to a person or group of
persons (within the meaning of the 1934 Act) if, after
such sale, such person or group of persons would not, in
the aggregate, own, control or have the right to acquire
more than two percent (2%) of the outstanding securities
of any class of voting securities of the Corporation,
(e) a merger, consolidation or similar transaction
involving the Corporation if, after such transaction, a
person or group of persons (within the meaning of the
1934 Act) in the aggregate would own or
control securities which possess in the aggregate the
ordinary voting power to elect a majority of the
surviving corporation's directors (provided that the
transaction has been approved by the Board or a
committee thereof), and (f) the establishment of the
initial holder of shares of Class B Common as a Small
Business Investment Corporation in accordance with the
Small Business Investment Act of 1958, as amended, and
the rules and regulations thereunder promulgated by the
Small Business Administration. For purposes of this
paragraph 4A, a "person" shall include any natural
person and any corporation, partnership, limited
liability company, joint venture, trust, unincorporated
organization and any other entity or organization.
(iii) Each holder of Class B Common shall be entitled
to convert shares of Class B Common in connection with
any Conversion Event if such holder reasonably believes
that such Conversion Event will be consummated, and a
written request for conversion from any holder of Class
B Common to the Corporation stating such holder's
reasonable belief that a Conversion Event shall occur
shall be conclusive and shall obligate the Corporation
to effect such conversion in a timely manner so as to
enable each such holder to participate in such
Conversion Event. The Corporation will not cancel the
shares of Class B Common so converted before the tenth
day following such Conversion Event and shall reserve
such shares until such tenth day for reissuance in
compliance with the next sentence. If any shares of
Class B Common are converted into shares of Class A
Common in connection with a Conversion Event and such
shares of Class A Common are not actually distributed,
disposed of or sold pursuant to such Conversion Event
(other than pursuant to clause (f) in the definition
thereof), such shares of Class A Common shall be
promptly converted back into the same number of shares
of Class B Common.
4B. CONVERSION PROCEDURE.
(i) Each conversion of shares of Class B Common into
shares of Class A Common shall be effected by the
surrender of the certificate or certificates
representing the shares to be converted at the principal
office of the Corporation at any time during normal
business hours, together with the request described in
subparagraph 4A(iii) hereof. Each conversion shall be
deemed to have been effected as of the close of business
on the date on which such certificate or certificates
have been surrendered and such notice has been received
(or such later date as specified in the request
described in subparagraph 4A(iii)), and at such time the
rights of the holder of the converted Class B Common as
such holder shall cease and the person or persons in
whose name or names the certificate or
certificates for shares of Class A Common are to be
issued upon such conversion shall be deemed to have
become the holder or holders of record of the shares of
Class A Common represented thereby.
(ii) Promptly after the surrender of certificates and
the receipt of the written notice or the request
described above, the Corporation shall issue and deliver
in accordance with the surrendering holder's
instructions (a) the certificate or certificates for the
Class A Common issuable upon such conversion and (b) a
certificate representing any Class B Common which was
represented by the certificate or certificates delivered
to the Corporation in connection with such conversion
but which was not converted.
(iii) The issuance of certificates for Class A Common
upon conversion of Class B Common will be made without
charge to the holders of such shares for any issuance
tax in respect thereof or other cost incurred by the
Corporation in connection with such conversion and the
related issuance of Class A Common.
(iv) The Corporation shall at all times reserve and
keep available out of its authorized but unissued shares
of Class A Common, solely for the purpose of issuance
upon the conversion of the Class B Common, such number
of shares of Class A Common issuable upon the conversion
of all outstanding Class B Common. All shares of Class
A Common issuable upon the conversion of the Class B
Common shall, when issued, be duly and validly issued,
fully paid and nonassessable and free from all taxes,
liens and charges. The Corporation shall take all such
actions as may be necessary to assure that all such
shares of Class A Common may be so issued without
violation of any applicable law or governmental
regulation or any requirements of any domestic
securities exchange upon which shares of Class A Common
may be listed (except for official notice of issuance
which will be immediately transmitted by the Corporation
upon issuance).
(v) The Corporation shall not close its books
against the transfer of shares of Common Stock in any
manner which would interfere with the timely conversion
of any shares of Class B Common.
Section 5. STOCK SPLITS. If the Corporation in any manner
subdivides (by any stock split, stock dividend, recapitalization
or otherwise) or combines (by reverse stock split or otherwise)
the outstanding shares of one class of Common Stock, the
outstanding shares of the other classes of Common Stock shall be
proportionately subdivided or combined in a similar manner.
Section 6. REGISTRATION OF TRANSFER. The Corporation shall
keep at its principal office (or such other place as the
Corporation reasonably designates) a register for the
registration of shares of Common Stock. Upon the surrender of
any certificate representing shares of any class of Common Stock
at such place, the Corporation shall, at the request of the
registered holder of such certificate, execute and deliver a new
certificate or certificates in exchange therefor representing in
the aggregate the number of shares of such class represented by
the surrendered certificate, and the Corporation forthwith shall
cancel such surrendered certificate. Each such new certificate
will be registered in such name and will represent such number
of shares of such class as is requested by the holder of the
surrendered certificate and will be substantially identical in
form to the surrendered certificate. The issuance of new
certificates shall be made without charge to the holders of the
surrendered certificates for any issuance tax in respect thereof
or other cost incurred by the Corporation in connection with
such issuance.
Section 7. REPLACEMENT. Upon receipt of evidence
reasonably satisfactory to the Corporation (an affidavit of the
registered holder will be satisfactory) of the ownership and the
loss, theft, destruction or mutilation of any certificate
evidencing one or more shares of any class of Common Stock, and
in the case of any such loss, theft or destruction, upon receipt
of indemnity reasonably satisfactory to the Corporation
(provided that if the holder is a financial institution, other
institutional investor or executive officer of the Corporation,
such holder's own agreement will be satisfactory), or, in the
case of any such mutilation upon surrender of such certificate,
the Corporation shall (at its expense) execute and deliver in
lieu of such certificate a new certificate of like kind
representing the number of shares of such class represented by
such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated
certificate.
Section 8. NOTICES. All notices referred to herein shall
be in writing, shall be delivered personally or by reputable
overnight courier service, charges prepaid, and shall be deemed
to have been given when so delivered or sent to the Corporation
at its principal executive offices and to any stockholder at
such holder's address as it appears in the stock records of the
Corporation (unless otherwise specified in a written notice to
the Corporation by such holder).
Section 9. AMENDMENT AND WAIVER. No amendment or waiver of
any provision of this Part B of this Article IV shall be
effective without the prior approval of the holders of a
majority of the then outstanding Common Stock
(voting as a single class); PROVIDED that the vote of the
holders of a majority of any class of Common Stock shall be
required if any such amendment would after or change the powers,
preferences or special rights of the shares of such class so as
to affect such class adversely."
THIRD: This Amendment to the Certificate of Incorporation
was duly adopted by the Board of Directors and by the written consent of the
holder of all outstanding stock of the Corporation entitled to vote in
accordance with Sections 228 and 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment of its Certificate of Incorporation to be executed
by its Secretary this 20th day of April 1998.
By: /s/ Douglas B. Solomon
----------------------------
Douglas B. Solomon
Secretary