ARTICLES OF INCORPORATION
OF
Total LifeStyle Corporation
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The name of the corporation is Total LifeStyle Corporation
2. The address of its registered office in the State of Delaware is
Corporation Trust Center No.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
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware
4. The total number of shares of stock which the corporation shall have
authority to issue is Forty Million {40.000,000) of which stock Twenty
Million (20,000,000) shares of the par value of One Tenth of One Cent ($.001}
each, amounting in the aggregate to Twenty Thousand Dollars($20,0000)shall be
Common stock and of which Twenty Million (20,000,000) shares of the par value
of One Dollar {$1.00} each, amounting in the aqgregate to Twenty Million
Dollars ($20,000,000.00) shall be Preferred stock.
A. Authorization of Directors to Determine
Certain Rights with Respect to Preferred stock
The Board of Directors is authorized, from time to time to divide the
Preferred Stock into Series, to designate each Series, to fix and determine
separately for each Series anyone or more of the following relative rights
and preferences, and to issue shares of any Series then or previously
desiqnated, fixed and determined.
1 - The rate of dividend;
2. The price at and the terms and conditions on which shares may be redeemed:
3. The Amount payable upon shares in event of voluntary liquidation;
4. The amount payable upon shares in event of voluntary liquidation ;
5. Sinking fund provisions (if any) for the redemption or purchase of shares:
6. The terms and conditions on which shares may be converted if the shares of
any Series are issued with the privilege of conversion; and
7. Voting rights (including the number of votes per share, the matters on
which the shares can vote, and the contingencies which make the voting rights
effective).
B. Preference, Limitations and Relative Rights:
1. General. All shares of common stock will have identical rights with each
other. Except as provided in this Article 4., all shares of Preferred Stock
will havepreferences, limitations, and relative rights identical with each
other. Except as otherwise expressly provided by law, shares of Preferred
Stock will have only the preferences and relative rights expressly stated in
this Article 4.
2. Dividends.
(a) Amount; Time. The Preferred Stock at the time outstanding shall be
entitled to receive, when and as declared by the Board of Directors, out of
any funds legally available therefor, dividends at the rate fixed by the
Board of Directors (pursuant to subparagraph A. above), and no more, payable
on such dates as determined by the Board of Directors.
(b) Cumulativity. Dividends on the Preferred Stock will be cumulative from
date of issue. Cumulations of dividends shall not bear interest.
(c) Priority Over Common; Restriction on Purchases of Common. No dividend
will be declared or paid on common stock, and no common stock will be
purchased by the corporation unless full dividends on outstanding shares of
Preferred Stock for all past dividend periods and for the current dividend
period will have been declared and paid.
(d) Parity Among Series. No dividend will be declared on any Series of
Preferred Stock: (i) for any dividend period unless all dividends cumulated
for all prior dividend periods will have been declared or will then be
declared at the same time upon all Preferred Stock then outstanding; or (ii)
"unless a dividend for the same period will be declared at the same time upon
all Preferred Stock then outstanding in like proportion to the dividend rate
then declared.
3. Liquidation Preference. In event of dissolution, liquidation, or winding
up of the corporation (whether voluntary or involuntary), after payment or
provision for payment of debts but before any distribution to the holders of
common stock, the holders of each Series of Preferred Stock then outstanding
will be entitled to receive the amount fixed by the Board of Directors
(pursuant to subparagraph A. above) plus a sum equal to all cumulated but
unpaid dividends distribution and no more. All remaining asset will then
be distributed rata among the holders of the common stock. If the assets
distributable among the holders of Preferred Stock are insufficient to permit
full payment to them, the entire assets will be distributed among the holders
of Preferred Stock in proportion to their respective liquidation preferences.
None of the following events is a dissolution, liquidation, or winding up
within the meaning of this paragraph; consolidation, merger, or
reorganization of the corporation with any other corporation or corporations,
sale of all or sudtantially all of the assets of the corporation, or any
purchase or redemption by the corporation of any of its outstanding shares.
4 REDEMPTION
Right; Method. All or any part of any one or more Series of Preferred Stock
may be redeemed at any time or times at the option of le corporation, by
resolution of the Board of directors, in accordance with the terms and
conditions of this Article 4. and those fixed by the Board of Directors
(pursuant to A above).The corporation may redeem the shares of any one or
more Series without redeeming shares of any other Series. If less than all
the shares of any Series are to be redeemed, the shares of the Series
to be redeemed wii be selected ratably or lot or by any other equitable
method determined the Board of Directors.
(b) Notice. Notice will be given the holders of shares to be redeemed, either
personally or by mail, not less than twenty (20) nor more than fifty (50}
days before the date fixed for redemption.
(c) Payment. Redeemed shares will be paid in cash the amount fixed by the
Board of directors (pursuant to subparagraph A. above) plus sum equal to all
cumulated but unp3id dividends whether or not earned or declared) to the date
fixed for redemption, and no more.
(d) Provision for Payment. On or before the date fixed for redemption, the
corporation may provide for payment of a sum sufficient to redeem the shares
called for redemption either (1) by setting aside the sum, separate from its
other funds, in trust for the benefit of the shares to be redeemed, or (2) by
depositing such sum in a bank or trust company (either one in Texas having
capital and surplus of at least ten million dollars ($10,000,000) according
to its latest statement of condition, or one anywhere in the United States
duly appointed and acting as transfer agent of the corporation} as a trust
fund, with irrevocable instructions and authority to the bank or trust
company to give or complete the notice of redemption and to pay, on or after
the date fixed for redemption, the redemption l:)price on surrender of their
respective share certificates. The holders may be evidenced by a list
certified by the corporation (by its president or vice president and by its
secretary or an assistant secretary) or by its transfer agent. If the
corporation so provides for payment,
then from and after the date fixed for redemption: (a) the shares will be
considered to be redeemed, (b) dividends thereon will cease to accrue, (c)
such setting aside or deposit will be considered to constitute full payment
for the shares, (d) the shares wi1l no longer be considered to be
outstanding, (e) the holder's thereof will cease to be shareholders with
respect to such shares, and (f) the holders will have no rights with respect
thereto except the right to receive (without interest) their proportion
aside or deposited upon surrender of their respective certificates, and any
right to convert such shares which may exist. Any interest accrued on funds
so set aside or deposited will belong to the corporation. If the holders of
the shares do not, within six (6) years after such deposit, claim any amount
so deposited for redemption thereof, the bank or trust company sha11 upon
demand pay over to the corporation the balance of the funds so deposited, and
the bank or trust company will thereupon be relieved of all respnsibilites to
the shareholders.
{e) Status of Redeemed Shares. Shares of preferred stock which are redeemed
will be cancelled and will be restored to the status of authorized but
unissued shares.
5. Purchase. Except as specified in subparagraph B.2.c. nothing herein will
limit the right of the corporation to purchase any of its outstanding shares
in accordance with law, by public or private transaction.
6. Voting. Except as fixed by the Board of Directors {pursuant to
subparagraph A. above), and except as otherwise expressly provided by law,
all voting power will be in the common stock and none in the preferred stock.
Where preferred stock as a class has voting power, all classes of preferred
stock will be a sinqle class.
The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS
V.A. BROOKENS CORPORATION TRUST COMPANY
1209 ORANGE STREET
WILMINGTON, DELAWARE 19801
J.L. AUSTIN CORPORATION TRUST COMPANY
1209 ORANGE STREET
WILMINGTON, DELAWARE 19801
D.L. SIPPLE CORPORATION TRUST COMPANY
1209 ORANGE STREET
WILMINGTON, DELAWARE 19801
5B The name and mailing address of each person who is to serve as a director
until the first annual meeting of the stockholders or until a successor is
elected and qualified, is a follows:
Name Mailing Address
Jean Landsee 4771 Easley Street
Millington, Tennessee 38053
Cortland McLeod 2350 Airport Freeway
Dallas, Texas 76022
Barbara Schrang 4739 Spring Circle
Minnetonka, Minnesota 55343
Lucien Battiato 1134 Rugeley Court
Addison, Illinois 60101
6.The corporation is to have perpetual existence
7. In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
To make, alter or repeal the By-Laws of the corporation.
To authorize and cause to be executed mortgages and liens upon and personal
property of the corporation to set apart out of any of the funds of the
corporation available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner
in which it was created
By a majority of the whole board, designate one or more committees. each
committee to consist of one or more of the directors of the corporation. The
board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meetinq
of the committee. The By-Laws mav provide that in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act atthe meetinq in the place of any such absent or
disqualified members.
Any such committee, to the extent provided in the resolution of the Board of
Directors, or in the by-Laws of the corporation, shall have and may exercise
all the powers and authority of the Board of Directors in the manaqement of
the business and affairs of the corporation, and may authorize the seal of
the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adoptinq an Agreement of Merger or Consolidation
recommendinq to the stockholders the sale, lease or exchanqe of all or
substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the By-laws of the corporation; unless the
resolution or by-Laws expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and
assets of the corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration, which
may consist in whole or in part of money or property including shares of
stock in, and/or other securities of, any other corporation or corporations,
as its Board of Directors shall deem expedient and for the best interests of
the cor[oration.
8. Vote Required to Approve Certain Business
Combinations.
In addition to any affirmative vote required by law, the certificate of
Incorporation, any "Business Combination" (as hereinafter defined) involving
the corporation will be subject to approval in the manner set forth in this
Article.
The affirmative vote of not less than fifty-one percent (51%) of the voting
stock, excluding the voting stock of an Intere5ted Shareholder who is a party
to the Business Combination will be required for the adoption or
authorization of a Business Combination, unless the Disinterested Directors
determine that:
(A} The Interested Shareholder is the Beneficial Owner of not less than
eighty percent (80%) of the voting stock and has declared its intention to
vote in favor of or approve such Business Combination; or
(B) The fair market value of the consideration per share to be received or
retained by the holders of each class or series of stock of the corporation
in a Business Combination is equal to or qreater than the consideration per
share including brokeraqe commissions and soliciting dealer's fees) paid by
Such Interested Shareholder in acquirinq the larqest number of shares of such
class of stock previously acquired. In anyone transaction or series of
related transaction, whether before or after the Interested Shareholder and
{f} the Interested Shareholder will not have received
the benefit, directly or indirectly {except proportionately as a shareholder}
of any loans, advances, guarantees, pledges or other financial assistance
provided by the corporation, whether in anticipation of or in connection with
such Business Combination or otherwise. In the event any vote of holders of
voting stockholder is required for the adoption or approval of any Business
Combination, a proxy or information statement describing the
Business Combination and complying with the requirements of Securities and
Exchange Act of 1934 ("1934 Act") will be mailed at a date determined by the
Disinterested Directors to all shareholders of the corporation whether or not
such statement is required under the 1934 Act. The statement will contain
any recommendations as to the advisability of the Business Combination which
the Disinterested Directors, or any of them, may choose to state, and if
deemed inadvisable by the Disinterested Directors, an opiion of an
investment banking firm as to the fairness of the terms of such Business
Combination. Such firm will be selected by the Disinterested Directors and
paid a fee for its services by the corporation as approved by the
Disinterested Directors.
9. Limitation on Repurchase of Shares by the Corporation
The corporation may not purchase shares of its voting stock from any Person
known to the corporation to be the Beneficial Owner of five percent (5%) or
more of the voting stock at a per share price in excess of the average
closing bid prices for the stock during the thirty day period preceding the
date of such purchase unless the purchase is: (i) approved by the affirmative
vote of the holders of a majority of the voting stock; (ii) pursuant to an
offer made available on the same terms to all holders of the
i) pursuant to a purchase program effected by the corporation on the open
market and not the result of a privately negotiated transaction.
FOR PURPOSES OF ARTICLES 8 AND 9:
(A) "Affiliate or Beneficial Owner". An "Affiliate or "Beneficial Owner" as
used herein have the; same meaning as those terms are defined in Rule 12b-2
and Rule 13d-3, respectively, under the 1934 Act. The term "Affiliate" as
used herein will exclude the corporation, but will include the definition of
"Associate" as contained in said Rule 12b-2.
(B) "Interested Shareholder". An "Interested Shareholder" is a person other
than the corporation who is (i) the Beneficial Owner of ten per cent (10%) or
more of
the stock of the corporation entitled to vote for the election of directors
( "voting stock"), or (ii) an Affiliate of the corporation and (A) any time
within a two-year period prior to the record date to vote on a Business
Combination was the Beneficial Owner of ten percent (10%) or more of the
voting stock, or (B) at the completion of the Business Combination will be
the Beneficial Owner of ten percent (10%) or more of the voting stock.
(C) "Person". A "Person" is a natural person or a legal entity of any kind,
together with any Affiliate of such person or entity, or any person or Entity
with whom such person, entity or an Affiliate has any agreement or
understanding relating to acquiring, voting, or holding
voting stock.
{D} "Disinterested Director". A "Disinterested Director" is a member of the
Board of Directors of the corporation (other than the Interested Shareholder)
who was director prior to the time he became an Interested Shareholder, or
any director who was recommended for election by the Disinterested Directors.
Any action to be taken by the Disinterested Directors shall require the
affirmative vote of at least two-thirds of the Disinterested Directors.
(e) "Business Combination". A "Business Combination" is (i) a merqer or
consolidation of the corporation or any of its subsidiaries 'with an
Interested Shareholder, {ii) the gale, lease, exchange, pledge, transfer or
other disposition (A) by the corporation or any of its subsidiaries of all or
a substantial part of the corporation's assets to an Interested Shareholder,
or (B) by an Interested Shareholder of any of its assets, except the ordinary
Course of business to the corporation or any of its subsidiari
or other securities of the corporation or any of its subsidiaries to an
Interested Shareholder other than on a pro rata basis to all holders of
voting stock of the same class held by the Interested Shareholder pursuant to
a stock split, stock dividend or distribution of warrants or rights, (iv) the
adoption of any plan or proposal for the liquidation or dissolution of the
corporation proposed by or on behalf of an Interested Shareholder; (v) any
reclassification of securities, recapitalization, merger or c
ion which has the effect, directly or indirectly, of increasing the
proportionate share of any voting stock beneficially owned by an Interested
Shareholder, or (vi)any agreement, contract or other arrangement providing
for any of the foregoing transactions.
(f)"Substantial part of the Corporation's Assets" A "Substantial Part of the
Corporation's Assets" means assets of the corporation or any of its
subsidiaries in an amount equal to twenty percent (20%) or more of the fair
market value, as determined by the Disinterested Directors, of the total
consolidated assets of the corporation and its subsidiaries taken as a whole
as of the end of its most recent fiscal year ended prior to the time the
determination is made.
10. Elections of directors need not be by written ballot unless the By-Laws
of the corporation shall so provide.
Meetings of stockholders may be held within or without the State of Delaware,
as the By-Laws may provide.
The books of the corporation may be kept (subject to any provision contained
in the statutes} outside the State of Delaware at such place or places as may
be designated from time to time by the Board of Directors or in the By-Laws
of the corporation
11. The corporation reserves the right to amend, alter, change or repeal any
provisions contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation
WE THE UNDERSIGNED, being each of the incorporators hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware do make this certificate, hereby declaring and
certifying this is our act and deed and the facts herein stated are true, and
accordingly have hereunto set our hands this lOth day of March, 1986.
/s/ V.A. Brookens
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V.A. Brookens
/s/ J.L. Austin
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J.L. Austin
/s/ D.L. Sipple
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D.L. Sipple
