EXHIBIT 3.5
ARTICLES OF INCORPORATION
ARTICLE ONE
The name of the corporation is: SIDNEY RICH ASSOCIATES, INC.
ARTICLE TWO
The address, including street and number, if any, of the
corporation's initial registered office in this state is 1000 Washington Avenue,
St. Louis, Missouri 63101; and the name of its initial agent at such address is
Sidney Rich.
ARTICLE THREE
Authorized Capital
The total authorized capital of this corporation consists of the
following:
1. One thousand (1,000) shares of Common Stock having a par value of one
($1.00) each;
2. One thousand (1,000) shares of twelve and eight-tenths (12.8%) percent
Class A Voting Preferred Stock without par value and with a Liquidation
Value (as defined below) of three thousand three hundred and seventy-two
($3,372.00) dollars each;
3. One thousand (1,000) shares of fifteen (15.0%) percent Class B Convertible
Preferred Stock without par value and with a Liquidation Value (as defined
below) of three thousand three hundred and seventy-two ($3,372.00) dollars
each; and
4. One thousand (1,000) shares of twelve (12.0%) percent Class C Cumulative
Preferred Stock without par value and with a Liquidation Value (as defined
below) of three thousand three hundred and seventy-two ($3,372.00) dollars
each.
Terms of Authorized Capital
The preferences, qualifications, privileges, limitations, restrictions and
the special or relative rights, including conversion rights, if any, in respect
of the shares of each class are as follows:
(1) Voting Rights
Except as otherwise expressly provided herein, the Class A Voting
Preferred Stock shall have the exclusive right to vote for the election of
directors and for all other purposes, each holder of the Class A Voting
Preferred Stock being entitled to one (1) vote for each share thereof held.
The Common Stock, Class B Convertible Preferred Stock and Class C
Cumulative Preferred Stock shall not have the right to vote for the election of
directors or other purposes; provided, however, that each holder of the Common
Stock, Class B Convertible Preferred Stock and Class C Cumulative Preferred
Stock shall have the right to one (1) vote for each share thereof held, on the
following matters:
(a) The sale, lease, exchange or other disposition, other than by
mortgage, deed of trust or pledge, of all, or substantially all,
the property and assets, with or without the goodwill, of the
corporation or any other corporation (a "subsidiary") in which
the corporation owns at least fifty (50%) percent of the
outstanding voting shares if the corporation's shares of such
subsidiary have a fair market value equal to or greater than two
hundred fifty thousand ($250,000.00) dollars, if not made in the
usual and regular course of its business;
(b) A merger of the corporation or a subsidiary into another
corporation or other corporations, a merger of another
corporation or other corporations into the corporation or a
subsidiary, or the consolidation of the corporation or a
subsidiary with another corporation or other corporations;
provided, however, that holders of the Common Stock, Class B
Convertible Preferred Stock and Class C Cumulative Preferred
Stock shall not be entitled to vote for a merger or
consolidation involving the corporation or a subsidiary and
another corporation or other corporations in any case in which
the corporation owns at least ninety
(90%) percent of the outstanding shares of each class of stock
of the other corporation or corporations;
(c) The liquidation, dissolution or winding up of the corporation or
a subsidiary, whether voluntary of involuntary.
The holders of the Common Stock, Class B Convertible Preferred Stock and
Class C Cumulative Preferred Stock, respectively, also shall each be entitled to
vote as a class upon a proposed amendment to the Articles of Incorporation if,
and only if, the amendment would:
(a) Increase or decrease the aggregate number of authorized shares
of the class;
(b) Increase or decrease the par value of the shares of the class;
(c) Effect an exchange, reclassification or cancellation of all or
part of the shares of the class;
(d) Effect an exchange, or create a right of exchange, of all or any
part of the shares of another class into shares of the class;
(e) Change the designations, preferences, limitations or relative
rights of the shares of the class;
(f) Change the shares of the class, whether with or without par
value, into the same or a different number of shares, either
with or without par value, of the same class or another class;
(g) Create a new class of shares having rights and preferences prior
or superior to the shares of the class, or increase the rights
and preferences or the number of authorized shares of any class
having rights and preferences prior or superior to the shares of
the class;
(h) In the case of the Class B Convertible Preferred Stock and Class
C Cumulative Preferred Stock, divide the shares of the class
into series and fix and determine
the designation of the series and the variations in the
relative rights and preferences between the shares of the
series, or authorize the board of directors to do so;
(i) Establish, limit or deny any preemptive rights of the shares of
the class; or
(j) Cancel or otherwise affect dividends on the Class C Cumulative
Preferred Stock which have accumulated but have not been
declared; provided, however, that a merger or consolidation
which does not affect the number of authorized shares, par
value, designations, preferences, limitations or relative rights
of the Class C Cumulative Preferred Stock shall not be deemed to
constitute an amendment for purposes of this section.
Notwithstanding any other provision in this Article Three, in the event of
the failure of the corporation to pay three (3) consecutive annual dividends
upon the Class C Cumulative Preferred Stock, the holders of the Class C
Cumulative Preferred Stock shall have equal voting power, share for share, with
the holders of the Class A Voting Preferred Stock until all unpaid cumulative
dividends upon the Class C Cumulative Preferred Stock have been paid infull.
(2) Dividends
The holders of the Class C Cumulative Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, annual dividends to the
extent permitted by law at a rate equal to twelve (12%) of the Liquidation Value
(as defined below) of the Class C Cumulative Preferred Stock per year payable
annually on the first day of November of each year (the "Dividend Date") with
proper adjustment for any dividend period which is less than a full year. Such
dividends shall be payable before any dividends shall be paid upon or set apart
for the Common Stock, Class A Voting Preferred Stock or Class B Convertible
Preferred Stock and shall be cumulative, so that, if for any annual dividend
period dividends at the rate of twelve (12%) percent of the Liquidation
Value (as defined below) of the Class C Cumulative Preferred Stock shall not
have been paid upon or set apart for the Class C Cumulative Preferred Stock, the
unpaid cumulative dividends shall be fully paid or set apart for payment (but
without interest) before any dividends shall be paid upon or set apart for the
Common Stock, Class A Voting Preferred Stock or Class B Convertible Preferred
Stock. The holders of the Class C Cumulative Preferred Stock shall not be
entitled to receive any other or further dividends of any kind on such stock.
If, and only if, payment of full dividends for any fiscal year on the
Class C Cumulative Preferred Stock, including all cumulative dividends, shall
have been made or after a sum sufficient for the payment thereof shall have been
set apart, the Board of Directors may in it sole discretion, to the extent
permitted by law, declare and pay dividends on the Dividend Date upon the Common
Stock, the Class A Voting Preferred Stock (at a rate equal to twelve and
eight-tenths (12.8%) percent of the Liquidation Value (as defined below) of the
Class A Voting Preferred Stock) or the Class B Convertible Preferred Stock (at a
rate equal to fifteen (15%) percent of the Liquidation Value (as defined below)
of the Class B Convertible Preferred Stock); provided, however, that no
dividends shall be payable on the Class A Voting Preferred Stock or Class B
Convertible Preferred Stock unless equal dividends, in each case on a
share-by-share basis, are paid on the Common Stock. The holders of the Class A
Voting Preferred Stock and Class B Convertible Preferred Stock shall not be
entitled to receive dividends solely by virtue of the fact that dividends have
been declared upon the Common Stock; but rather such holders shall be entitled
to receive dividends only as declared by the Board of Directors, in its sole
discretion, for their respective classes of stock. The holders of the Class A
Voting Preferred Stock shall not be entitled to receive dividends solely by
virtue of the fact that dividends have been declared upon the Class B
Convertible Preferred Stock; and the holders of the Class B Convertible
Preferred Stock shall not be entitled to receive dividends solely by virtue of
the fact that dividends have been declared upon the Class A Voting Preferred
Stock. The dividends
on the Common Stock, Class A Voting Preferred Stock and Class B Convertible
Preferred Stock shall not be cumulative.
(3) Liquidation Preferences
In the event of any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, the holders of the Class A Voting
Preferred Stock, Class B Convertible Preferred Stock and Class C Cumulative
Preferred Stock shall be entitled, before any distribution or payment shall be
made to the holders of the Common Stock, to be paid amounts equal to three
thousand three hundred and seventy-two ($3,372.00) dollars for each share of the
Class A Voting Preferred Stock, Class B Convertible Preferred Stock and Class C
Cumulative Preferred Stock (the "Liquidation Value") from the assets remaining
after payment of the debts and liabilities of the corporation; provided,
however, that before any payment shall be made to the holders of the Class A
Voting Preferred Stock and Class B Convertible Preferred Stock, holders of the
Class C Cumulative Preferred Stock shall be entitled to receive an amount equal
to all unpaid cumulative dividends thereon. The holders of the Class A Voting
Preferred Stock, Class B Convertible Preferred Stock and Class C Cumulative
Preferred Stock shall not be entitled to receive any distribution or payment of
the assets of the corporation in excess of the amounts described in this
paragraph.
If, in the event of any liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, the assets of the corporation or
the proceeds thereof, distributable among the holders of the Class A Voting
Preferred Stock, Class B Convertible Preferred Stock and Class C Cumulative
Preferred stock shall not be sufficient to pay in full the unpaid cumulative
dividends on the Class C Cumulative Preferred Stock and the Liquidation Values
of the Class A Voting Preferred Stock, Class B Convertible Preferred Stock and
Class C Cumulative Preferred Stock, then the entire amount of such assets, or
the proceeds thereof, shall be paid first to the holders of the Class C
Cumulative Preferred Stock in an amount equal to all unpaid cumulative dividends
thereof. The excess amount, if any, shall be paid to the holders of the Class A
Voting Preferred Stock, Class B Convertible Preferred Stock and Class C
Cumulative Preferred Stock ratably in proportion to the respective amounts which
would have been paid if all amounts payable thereon were paid in full.
After the payment in full to the holders of the Class A Voting Preferred
Stock, Class B Convertible Preferred Stock and Class C Cumulative Preferred
Stock of the preferential amounts set forth above to which they shall be
entitled in the event of a liquidation, dissolution or winding up of the
corporation, the holders of the Common Stock shall be entitled to all of the
remaining assets of the corporation and shall receive payment thereof in
proportion to the shares held by them, respectively, to the exclusion of the
holders of the Class A Voting Preferred Stock, Class B Convertible Preferred
Stock and Class C Cumulative Preferred Stock.
The consolidation or merger of the corporation into or with any other
corporation or corporations shall not be deemed a liquidation, dissolution or
winding up of the corporation within the meaning of these provisions.
(4) Convertibility
Any holder of Class B Convertible Preferred Stock other than the initial
holder of such stock (i.e., Sidney Rich, Phillip Green or Harvey Levy) may, at
his sole option, convert such stock into Class C Cumulative Preferred Stock at
any time after, but not before, the death of the initial holder who held such
stock at the rate of one share of Class C Cumulative Preferred Stock, fully paid
and nonassessable, for each share of Class B Convertible Preferred Stock held by
such initial holder, without adjustment for dividends on either class of stock,
in the manner set forth in the by-laws. After being converted, the Class B
Convertible Preferred Stock shall be cancelled and retired and shall not be
reissued as such.
ARTICLE FOUR
The number and class of shares to be issued before the corporation shall
commence business, the consideration to be paid therefor and the capital with
which the corporation will commence business are as follows:
Par Value (or for shares
without par value, show
Consideration amount of consideration
No. of Shares Class to be paid paid which will be capital)
500 Common $500.00 $1.00 each
The corporation will not commence business until consideration of the
value of at least Five Hundred Dollars has been received for the issuance of
shares.
ARTICLE FIVE
The name and place of residence of each incorporator is as follows:
Name Street City
Marvin Moldafsky 10371 Forest Brook Lane St. Louis, Missouri 63141
ARTICLE SIX
The number of directors to constitute the board of directors is five
(5). Thereafter the number of directors shall be fixed by or in the manner
provided in the By-laws. Any changes in the number will be reported to the
Secretary of State within thirty (30) calendar days of such change.
ARTICLE SEVEN
The duration of the corporation is perpetual.
ARTICLE EIGHT
The corporation is formed for the following purposes:
1. To engage in any retail, wholesale, jobbing, brokerage,
manufacturing or service business and in connection thereto, to own, conduct,
manage and operate stores, shops, private and public warehouses, plants,
factories, establishments and offices.
2. To engage in the real estate, loan, investment, management, sales,
leasing, rental, construction and building business.
3. To acquire, buy, sell, rent, lease, incumber, build, mortgage,
sublease, and otherwise dispose of all types and kinds of real property incident
to the general business to be conducted by this corporation.
4. To buy and sell all types of personal property of all kinds.
5. To acquire, hold, use, sell, assign, lease, franchise, grant license
in respect thereto, mortgage or otherwise dispose of letters patent of the
United States or of any foreign country, patent rights, licenses, and
privileges, inventions, improvements, and processes, copyrights, business and
financial plans, trade-marks and trade-names, relating to or useful in
connection with any business of this corporation.
6. To buy and sell, hold, vote, assign, transfer, mortgage, pledge, or
otherwise own and dispose of, and generally to deal in shares of capital stock,
bonds, notes, debentures, mortgages and other and issued by any domestic
corporation (including this corporation) or any foreign corporation, partnership
or individual.
7. To borrow money, to issue, sell or otherwise dispose of notes,
debentures, mortgages or other evidences of indebtedness of the corporation, and
to secure the same by mortgage, or deed of trust upon, or pledge of, the
property of this corporation.
8. To maintain offices and to carry on any of its operations in any
other State or County, subject to the laws of such State or County.
9. To do any and all of the things herein set forth as natural persons
might or could do for their own account and for others.