Exhibit 3.27
CERTIFICATE OF INCORPORATION
OF
WING INDUSTRIES HOLDINGS, INC.
ARTICLE ONE
The name of this Corporation (hereinafter called
the "Corporation") is Wing Industries Holdings, Inc.
ARTICLE TWO
The address, including street, number, city and
county, of the registered office of the Corporation in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The
name of the registered agent of the Corporation in the State of Delaware at such
address is The Corporation Trust Company.
ARTICLE THREE
The nature of the business and the purposes to be
conducted and promoted by the Corporation is to conduct any lawful business, to
promote any lawful purpose and to engage in any lawful act or activity for which
a corporation may be organized under the General Corporation Law of the State of
Delaware.
ARTICLE FOUR
The total number of shares of capital stock which
the Corporation shall have authority, to be exercised by the Board of Directors,
to issue is 227,000 shares consisting of 200,000 shares of Class A common stock,
par value $.01 per share (the "Common Stock"), 25,000 shares of Class B
non-voting common stock, par value $.01 per share (the "Nonvoting Common
Stock"), and 2,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"). The express terms and provisions of the Common Stock, the
Nonvoting Common Stock and the Preferred Stock are as follows:
A. VOTING RIGHTS.
1. COMMON STOCK. With respect to all matters upon which
stockholders are entitled to vote or to which stockholders are
entitled to give consent, the holders of the outstanding shares of
Common Stock shall be entitled to cast thereon one (1) vote in
person or by proxy for each share of Common Stock held in his or
her name.
2. NON-VOTING COMMON STOCK. Except as required by the
General Corporation Law of the State of Delaware, the holders of
Non-voting Common Stock shall have no voting power whatsoever, and
no holder of Nonvoting Common Stock shall vote or otherwise
participate in any proceeding in which actions shall be taken by
the Corporation or the stockholders thereof or be entitled to
notification as to any meeting of the Board of Directors of the
Corporation or the stockholders.
B. OTHER RIGHTS. Except as required by the General Corporation Law
of the State of Delaware or as otherwise provided herein, each share of Common
Stock and each share of Non-voting Common Stock shall be identical in all
respects.
C. CONVERSION OF NON-VOTING COMMON STOCK. The holder of any shares
of the Non-voting Common Stock shall have the right, at such holder's option, to
convert all or any number of such shares of Non-voting Common Stock into such
equal number of fully paid and nonassessable shares of Common Stock as herein
provided at any time and from time to time.
1. CONVERSION NOTICE. The holder of any shares of
Non-voting Common Stock may exercise the conversion right provided
in this Section C by giving written notice (the "Conversion
Notice") to the Corporation stating the number of shares of
Non-voting Common Stock to be converted (the "Non-voting
Conversion Shares"), the name or names in which the stock
certificate or stock certificates for the shares of Common Stock
are to be issued and the address to which such certificates shall
be delivered. The Conversion Notice shall be accompanied by the
stock certificate or stock certificates representing the
Non-voting Conversion Shares, duly endorsed to the Corporation or
endorsed in blank.
2. ISSUANCE OF COMMON STOCK UPON CONVERSION. Conversion
shall be deemed to have been effected on the date the Conversion
Notice is given (the "Conversion Date"). Within ten (10) business
days after receipt of the Conversion Notice, the Corporation shall
issue and deliver by hand against a signed receipt therefor or by
United States registered mail, to the address designated by the
holder of the Non-voting Conversion Shares in the Conversion
Notice, a stock certificate or stock certificates of the
Corporation representing the number of shares of Common Stock to
which such holder is entitled and a check or cash in payment of
accrued and unpaid dividends with respect to the Non-voting
Conversion Shares. In the event that only a portion of the number
of shares of Non-voting Common Stock represented by a stock
certificate surrendered for conversion shall be Non-voting
Conversion Shares, the Corporation shall issue and deliver in the
manner aforesaid to the holder of the stock certificate so
surrendered for conversion, at the expense of the Corporation, a
new stock certificate for the number of unconverted shares of
Non-voting Common Stock.
3. REORGANIZATION AND RECAPITALIZATION. In case of any
capital reorganization, any reclassification of other stock of the
Corporation (other than as a result of a stock dividend) or the
consolidation or merger of the Corporation with or into another
person or entity (other than a merger in which the Corporation is
the continuing corporation and which does not result in any change
in the Common Stock) or the sale, exchange, lease, transfer or
other disposition or stock exchange (each a Recapitalization
Transaction"), the Non-voting Common Stock shall be convertible
into the kind and number of shares of stock or other securities or
property of the Corporation or of the corporation surviving such
merger or to which such properties and assets shall have been
sold, exchanged, leased, transferred or otherwise disposed or
which was the corporation whose securities were exchanged for
those of the Corporation to which the holder of the number of
shares of Common Stock deliverable
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(at the close of business on the date immediately preceding the
effective date of such Recapitalization Transaction) upon
conversion of such shares of Non-voting Common Stock would have
been entitled upon such Recapitalization Transaction. The
provisions of this Section C.3. shall similarly apply to
successive Recapitalization Transactions.
4. ISSUANCE OF SHARES. Fractional shares of Non-voting
Common Stock or scrip shall be issued, where necessary, upon
conversion of shares of Non-voting Common Stock. If more than one
share of Non-voting Common Stock shall be surrendered for
conversion at any one time by the same holder, the number of
shares of Common Stock issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares of
Non-voting Common Stock so surrendered.
5. TAXES. The Corporation shall pay all documentary,
stamp or other transactional taxes and charges attributable to
the issuance or delivery of shares of stock of the Corporation
upon conversion of any shares of Non-voting Common Stock;
provided, however, that the Corporation shall not be required
to pay any taxes which may be payable in respect of any
transfer involved in the issuance or delivery of any
certificate for such shares in a name other than that of the
holder of the shares Non-voting Common Stock in respect of
which such shares are being issued.
6. RESERVATION OF SHARES. The Corporation shall at all
times reserve and keep available, free from preemptive rights,
unissued shares of Common Stock sufficient to effect the
conversion of all the issued and outstanding shares of Non-voting
Common Stock.
D. PREFERRED STOCK. Authorized and unissued shares of Preferred
Stock of the Corporation may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of such
shares of Preferred Stock in one or more series and to fix from time to time
before issuance the number of shares to be included in any series and the
designation, relative powers, preferences and rights, and the qualifications,
limitations or restrictions of all shares of any such series. Without limiting
the generality of the foregoing, as to each such series of Preferred Stock, the
Board of Directors is authorized to fix or to alter the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, the
liquidation preferences, rights to subscribe for or purchase any securities of
the Corporation or any other corporation, and the number of shares constituting
such series or any or all of them all as shall be determined from time to time
by the Board of Directors and as shall be stated in a resolution or resolutions
providing for the issuance of such Preferred Stock. The Board of Directors may
increase or decrease the number of shares in any such series after the issuance
of shares of that series, but not below the number of shares of such series then
outstanding. If the number of shares of any such series is so decreased, the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
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ARTICLE FIVE
The number of directors which shall constitute the whole Board of
Directors of the Corporation shall be determined pursuant to the By-Laws of
the Corporation as provided therein. Elections of directors need not be by
written ballot.
ARTICLE SIX
In furtherance and not in limitation of the powers
conferred by statute and in accordance with any relevant provisions of the
By-Laws, the Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
ARTICLE SEVEN
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.
ARTICLE EIGHT
The Corporation shall indemnify all directors and
officers of the Corporation, to the full extent permitted by the General
Corporation Law of the State of Delaware and as provided in the By-Laws of the
Corporation, from and against any and all expenses, liabilities or other
matters. The Corporation may indemnify, to the full extent permitted by the
General Corporation Law of the State of Delaware and as provided in the By-laws
of the Corporation, any and all persons whom it shall have the power to
indemnify from and against any and all expenses, liabilities or other matters.
ARTICLE NINE
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article
Nine shall not eliminate or limit the liability of a director (i) for any
breach of such director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of Title 8 of the General Corporation Law of the State of Delaware or (iv)
for any transaction from which such director derived an improper personal
benefit. If the General Corporation Law of the State of Delaware is amended
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 full extent permitted by the General
Corporation Law of the State of Delaware, as so amended. No amendment to or
repeal of this Article Nine 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 at the time of or
prior to such amendment or repeal. Any
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repeal or modification of this Article Nine shall not adversely affect
any right or protection of a director of the Corporation existing under this
Certificate of Incorporation.
ARTICLE TEN
Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or between
the 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 the Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for the Corporation under
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 the Corporation under
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 the
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 the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the 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 the Corporation, as the case
may be, and also on the Corporation.
ARTICLE ELEVEN
The name and mailing address of the incorporator
are James G. Turner, c/o Ardshiel, Inc., 230 Park Avenue,
New York, New York 10169.
I, THE UNDERSIGNED, being the sole incorporator
hereinbefore named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, do hereby make this
certificate, hereby declaring and certifying that this is my act and deed and
the facts herein stated are true and, accordingly, have hereunto set my hand
this 17th day of October, 1996.
/s/ James G. Turner
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James G. Turner
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
WING INDUSTRIES HOLDINGS, INC.
Wing Industries Holdings, Inc., a Delaware corporation (the
"Corporation"), certifies that:
1. The Board of Directors of the Corporation, by unanimous
written consent of its members dated the date hereof,
filed with the minutes of the Board of Directors, adopted
the following resolutions proposing and declaring advisable
the following amendment to the Certificate of Incorporation
of the Corporation:
RESOLVED, that Article Four of the Certificate of
Incorporation be amended by deleting the first sentence of
Article Four in its entirety and by substituting in lieu
thereof the following new first sentence of Article Four:
"The total number of shares of capital stock
which the Corporation shall have authority, to be
exercised by the Board of Directors, to issue is
327,000 shares consisting of 225,000 shares of Class
A common stock, par value $.01 per share (the "Common
Stock"), 100,000 shares of Class B non-voting common
stock, par value $.01 per share (the "Non-voting
Common Stock"), and 2,000 shares of preferred stock,
par value $.01 per share (the "Preferred Stock")."
and be it further;
RESOLVED, that such amendment is hereby declared
advisable and is hereby submitted to the stockholders of the
Corporation with a recommendation for its approval; the
appropriate officers of the Corporation are directed to file
such amendment with the Secretary of State of the State of
Delaware.
2. In lieu of a meeting and vote of the stockholders, the sole
stockholder by unanimous written consent dated the date
hereof, consented to said amendment in accordance with the
provisions of Section 228 of the Delaware General Corporation
Law.
3. The aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 228 and 242 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned does hereby make this
certificate, hereby declaring and certifying that this is the act and deed of
the Corporation and the facts herein stated are true and, accordingly, has
executed this certificate this 1st day of October, 1998.
WING INDUSTRIES HOLDINGS, INC.
By: /s/ James G. Turner
------------------------------
Name: James G. Turner
Title: Vice President and
Secretary
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
WING INDUSTRIES HOLDINGS, INC.
Wing Industries Holdings, Inc., a Delaware corporation (the
"Corporation"), certifies that:
1. The Board of Directors of the Corporation, by unanimous written
consent of its members dated the date hereof, filed with the
minutes of the Board of Directors, adopted the following
resolutions proposing and declaring advisable the following
amendment to the Certificate of Incorporation of the Corporation:
RESOLVED, that Article Four of the Certificate of Incorporation
be amended by deleting the first sentence of Article Four in its
entirety and by substituting in lieu thereof the following new first
sentence of Article Four:
"The total number of shares of capital stock which the
Corporation shall have authority, to be exercised by the Board of
Directors, to issue is 402,000 shares consisting of 225,000
shares of Class A common stock, par value $.01 per share (the
"Common Stock"), 175,000 shares of Class B non-voting common
stock, par value $.01 per share (the "Non-voting Common Stock"),
and 2,000 shares of preferred stock, par value $.01 per share
(the "Preferred Stock")."
and be it further;
RESOLVED, that such amendment is hereby declared advisable and is
hereby submitted to the stockholders of the Corporation with a
recommendation for its approval; the appropriate officers of the
Corporation are directed to file such amendment with the Secretary of
State of the State of Delaware.
2. In lieu of a meeting and vote of the stockholders, the stockholders,
by unanimous written consent dated the date hereof, consented to
said amendment in accordance with the provisions of Section 228 of
the Delaware General Corporation Law.
3. The aforesaid amendment was duly adopted in accordance with the
applicable provisions of Sections 228 and 242 of the Delaware General
Corporation Law.
IN WITNESS WHEREOF, the undersigned does hereby make this certificate,
hereby declaring and certifying that this is the act and deed of the Corporation
and the facts herein stated are true and, accordingly, has executed this
certificate this 1st day of October 1998.
WING INDUSTRIES HOLDINGS, INC.
By: /s/ Mike Quadhamer
-------------------------------
Name: Mike Quadhamer
Title: Chief Financial Officer