EXHIBIT 3.5
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF MERGER
OR SHARE EXCHANGE
Pursuant to ss.33-11-105 of the 1976 South Carolina Code, as
amended, the undersigned as the surviving corporation in a merger or the
acquiring corporation in a share exchange, as the case may be, hereby submits
the following information:
1. The name of the surviving or acquiring corporation is
Container Management Services, Inc.
2. Attached hereto and made a part hereof is a copy of the
Plan or Merger or Share Exchange (see ss.ss.33-11-101
(merger), 33-11-104 (merger of subsidiary into parent),
33-11-107 (mergEr or share exchange with a foreign
corporation), and 33-11-108 (merger of a parent corporation
into one of its subsidiaries)).
3. Complete the following information to the extent it is
relevant with respect to each corporation which is a party to
the transaction:
(a) Name of the corporation: Container Management Services,
Inc. Complete either (1) or (2), whichever is applicable:
(1) [x] Shareholder approval of the merger or stock exchange
was not required (See ss.ss.33-11-103(h), 33-11-104(a), and
33-11-108(a)).
(2) [ ] The Plan of Merger or Share Exchange was duly
approved by shareholders of the corporation as follows:
Number
of Out- Number of Votes Number of Votes Number of
standing Entitled Represented Undisputed* Shares
Voting Group Shares to be Cast at the meeting Voted For Against
- ------------ -------- ---------- -------------- --------- -------
(b) Name of the corporation: CMS Acquisition, Inc. Complete
either (1) or (2), whichever is applicable:
(1) [ ] Shareholder approval of the merger or stock exchange
was not required (See ss.ss.33-11-103(h), 33-11-104(a), and
33-11-108(a)).
(2) [x] The Plan of Merger or Share Exchange was duly
approved by shareholders of the corporation as follows:
Number
of Out- Number of Votes Number of Votes Number of
standing Entitled Represented Undisputed* Shares
Voting Group Shares to be Cast at the meeting Voted For Against
- ------------ -------- ---------- -------------- --------- -------
common 100 100 100 100 0
*NOTE: Pursuant to the Section 33-11-105(a)(3)(ii), the corporation
can alternatively state the total number of undisputed shares
cast for the amendment by each voting group together with a
statement that the number cast for the amendment by each
voting group was sufficient for approval by the voting group.
4. Unless a delayed date is specified, the effective date of
this document shall be the date it is accepted for filing by
the Secretary of State (See
ss.ss.33-1-230(b)):________________.
DATE: July 23, 1997 CONTAINER MANAGEMENT
SERVICES, INC.
By:/s/ Mark E. Daniels
----------------------
Mark E. Daniels,
President
*NOTE: Pursuant to the Section 33-11-105(a)(3)(ii), the corporation
can alternatively state the total number of undisputed shares
cast for the amendment by each voting group together with a
statement that the number cast for the amendment by each
voting group was sufficient for approval by the voting group.
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PLAN OF MERGER
-----------------------------
CMS ACQUISITION, INC.
A DELAWARE CORPORATION
INTO ITS WHOLLY OWNED SUBSIDIARY,
CONTAINER MANAGEMENT SERVICES, INC.,
A SOUTH CAROLINA CORPORATION
-------------------------------
THIS PLAN OF MERGER (hereinafter called the "Plan"), is hereby
adopted and approved as of this 23rd day of July, 1997, by CMS Acquisition, a
Delaware corporation ("Parent"), in order to provide for the merger of Parent
into its wholly owned subsidiary, Container Management Services, Inc., a South
Carolina corporation ("Subsidiary").
WHEREAS, Parent is a corporation duly organized and existing
under the laws of the State of Delaware, having been incorporated on July 2,
1997;
WHEREAS, Subsidiary is a corporation duly organized and
existing under the laws of the State of South Carolina, having been incorporated
on July 15, 1991;
WHEREAS, the authorized capital stock of Parent consists of
One Thousand (1,000) shares of common stock, $0.01 par value, of which 100
shares are outstanding;
WHEREAS, the authorized capital stock of Subsidiary consists
of Two Hundred Twenty Five Thousand (225,000) shares of Class A common stock, no
par value, and Twenty Five Thousand (25,000) shares of Class B common stock, no
par value, of which 90,000 shares of Class A common stock and 10,000 shares of
Class B common stock are outstanding, all of which are owned by Parent;
WHEREAS, the board of directors of Parent deems it advisable
for the general welfare and advantage of the corporations and the respective
shareholders that the corporations merge into a single corporation pursuant to
this Plan and pursuant to Section 33-11-108 of the South Carolina Code of Laws
of 1976, as amended, and the other applicable provisions of the laws of the
State of South Carolina and pursuant to Section 253(a) of the General
Corporation Law of Delaware and the other applicable provisions of the laws of
the State of Delaware.
NOW, THEREFORE, the board of directors of Parent, in
accordance with the applicable provisions of the laws of the State of South
Carolina and the State of Delaware hereby approve and adopt the merger of Parent
with and into Subsidiary, which shall continue its corporate existence and shall
be the corporation surviving the merger (hereinafter sometimes the "Surviving
Corporation"), upon the terms and conditions of the merger hereby adopted and
the mode of carrying the same into effect, are and shall be as hereafter set
forth:
ARTICLE ONE. Effective Time and Effect of Merger. Consummation
of this Plan shall be effected on the date on which this Plan of Merger and the
Articles of Merger are filed in the Office of the Secretary of State of South
Carolina and a Certificate of Ownership and Merger is filed in the office of the
Secretary of the State of Delaware (hereinafter the "effective time" of the
merger or sometimes the "closing" date), all after satisfaction of the
respective requirements of the applicable laws of the State of South Carolina
and the State of Delaware prerequisite to such filing. At the effective time of
the merger, the separate existence of Parent shall cease and it shall be merged
with and into the Subsidiary.
ARTICLE TWO. Governing Law. The laws which are to govern the
Surviving Corporation are the laws of the State of South Carolina.
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ARTICLE THREE. Articles of Incorporation. The Articles of
Incorporation of Subsidiary shall remain in effect subsequent to the effective
time of the merger and shall remain unchanged until the same may be amended or
altered at some future time in accordance with applicable laws.
ARTICLE FOUR. By-Laws. The By-Laws of Subsidiary at the
effective time of the merger shall be the By-Laws of the Surviving Corporation
and shall remain in effect subsequent to the effective time of the merger and
shall be unchanged until the same may be amended or altered at some future time
in accordance with the provisions thereof.
ARTICLE FIVE. Officers and Directors. Subject to the authority
of the shareholders and the board of directors as provided by law and the
By-Laws of the Surviving Corporation, the officers and directors of Subsidiary
at the effective time of the merger shall be the officers and directors of the
Surviving Corporation immediately following the effective time of the merger.
ARTICLE SIX. Conversion of Shares. The method of carrying
into effect the merger provided in this Plan, and the manner and basis of
converting the shares of Parent and of Subsidiary into shares of the Surviving
Corporation are as follows:
1. Parent: Conversion of Shares. At the effective time of the
merger, each shareholder of Parent shall receive one (1) share of Class A
(voting) common stock, no par value, of the Surviving Corporation for each share
of common stock of Parent which such shareholder owned prior to such effective
time.
2. Subsidiary: Cancellation of Shares. At the effective time
of the merger, the outstanding shares of common stock of Subsidiary shall be
canceled.
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3. Surrender of Certificates. No later than such date as is
reasonably selected by the corporate secretary of the Surviving Corporation,
each holder of stock certificates representing shares of common stock of
Subsidiary and of Parent issued and outstanding at the time the merger becomes
effective shall surrender such shares for exchange to the Surviving Corporation,
as provided above, and shall then be entitled to receive certificates for the
full number of shares of the Surviving Corporation as set forth above.
ARTICLE SEVEN. Rights and Privileges of Surviving Corporation.
At the effective time of the merger, the Surviving Corporation shall succeed to,
without other transfer, and shall possess and enjoy, all the rights, privileges,
immunities, powers and franchises both of a public and a private nature, and
shall be subject to all the restrictions, disabilities, and duties, of each of
the corporations; and all the rights, privileges, immunities, powers and
franchises of each of the corporations and all property, real, personal or
mixed; and all debts due to either of said corporations on whatever account, for
stock subscriptions as well as for all other things in action or belonging to
each of the corporations, shall be vested in the Surviving Corporation; and all
property, rights, privileges, immunities, powers and franchises, and all and
every other interest shall be thereafter as effectively the property of the
Surviving Corporation as they were of the respective corporations, and the title
to any real estate vested by deed or otherwise in either of said corporations
shall not revert or be in any way impaired by reason of the merger; provided,
however that all rights of creditors and all liens upon any property of either
of the corporations shall be preserved unimpaired, limited in lien to the
property affected by such liens at the effective time of the merger, and all
debts, liabilities and duties of the corporations, respectively, shall
thenceforth attach to the Surviving Corporation and may be enforced against it
to the same
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extent as if its debts, liabilities and duties had been incurred or contracted
by the Surviving Corporation.
ARTICLE EIGHT. Assets and Liabilities. The assets and
liabilities of the corporations as of the effective time of the merger shall be
taken up on the books of the Surviving Corporation at the amounts at which they
shall be carried at the time on the books of the respective corporations.
ARTICLE NINE. Shareholder Approval. This Plan of Merger shall
be submitted to the shareholders of Parent for approval as provided by law.
ARTICLE TEN. Further Assurances. If at any time the Surviving
Corporation shall conclude or be advised that any further assignment or
assurance in law or other action is necessary or desirable to vest, perfect, or
confirm, of record or otherwise, in the Surviving Corporation, the title to any
property or rights of Parent acquired or to be acquired by or as a result of the
merger, the presidents and secretaries, together, of the corporations shall be
and they hereby are severally and fully authorized to execute and deliver such
properties, assignments and assurances in law and to take such other action as
may be necessary or proper to vest, perfect or confirm title to such property or
rights in the Surviving Corporation and otherwise carry out the purposes of this
Plan.
ARTICLE ELEVEN. Termination. Anything herein or elsewhere to
the contrary notwithstanding, this Plan may be withdrawn in the event and at any
time before the effective time of the merger, upon direction of the board of
directors of Parent. It is anticipated that this Plan may be terminated and
abandoned in the event circumstances arise prior to the effective time of the
merger which would indicate that the transactions contemplated hereby are not in
compliance with applicable federal and state securities laws, or that the merger
would not be
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deemed a tax-free transaction for United States income tax purposes
as described more fully hereafter, or if any action or proceeding before any
court or other governmental body or agency shall have been instituted or
threatened to restrain or prohibit the merger and it is deemed advisable not to
proceed with the merger. Upon any such termination and abandonment, neither
party shall have any liability or obligation hereunder to the other party.
ARTICLE TWELVE. Tax Free Exchange. It is the intent of this
Plan that this Plan of Merger shall be considered a statutory merger and shall
be undertaken, as contemplated by Section 368(a)(1)(A) of the Internal Revenue
Code (the "Code"); that this Plan of Merger shall be considered a "plan of
reorganization" for such purposes; and that the exchange of shares of stock of
Parent for shares of stock of the Surviving Corporation shall be considered a
non-taxable exchange pursuant to Section 354 of the Code.
ARTICLE THIRTEEN. Nonsubstantive Amendment by President. If
prior to the effective time of the merger, the president of Parent determines
that some nonsubstantive amendment or alteration to this Plan is needed solely
for the purpose of complying with the applicable corporate laws of the State of
South Carolina, or the applicable income tax laws of the United States, or the
applicable federal or state securities laws, then the president of Parent shall
be, and hereby is, authorized to make such amendment to this Plan as shall be
deemed necessary by them to satisfy such applicable requirements; and in this
regard the said president shall be protected from liability so long as their
actions and decisions are made by them in good faith.
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IN WITNESS WHEREOF, this Plan has been signed by all of the
directors of Parent in accordance with the provisions of S.C. Code Ann.
ss.33-11-108 (Law. Co-op. 1976, as amended) and Delaware General Corporation Law
ss. 253 and as of the day, month and year first above written.
/s/ ROBERT SINGLETON
--------------------
Robert Singleton, Director
/s/ ROBERT ROSNER
--------------------
Robert Rosner, Director
/s/ DANIEL W. MILLER
--------------------
Daniel Miller, Director
Attest:
/s/ ROBERT ROSNER
- --------------------
Robert Rosner, Secretary
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
CONTAINER MANAGEMENT SERVICES, INC.
1. The name of the proposed corporation is Container Management Services,
Inc.
2. The initial registered office of the corporation is 346 Riverside
Drive, Greenville, South Carolina 29605 and the name of its initial
registered agent at such address is Mark E. Daniels.
3. The corporation is authorized to issue more than one class of shares:
Class of Shares Authorized No. of Each Class
--------------- ----------------------------
Class A (Voting Common) 225,000
Class B (Non-Voting Common) 25,000
The relative rights, preferences, and limitations of the shares of each
class, and of each series within a class, are as follows: Class A shall
be voting, common stock; Class B shall be non-voting, common stock.
4. The existence of this corporation shall begin when these articles are
filed with the Secretary of State.
5. The corporation elects to include no optional provisions in the articles
of incorporation.
6. The name and address of each incorporator is as follows:
Name Address Signature
Mark E. Daniels 346 Riverside Drive /s/ MARK E. DANIELS
Greenville, SC 29605
7. I, Robert D. Inglis, an attorney licensed to practice in the State of
South Carolina, certify that the corporation, to whose articles of
incorporation this certificate is attached, has complied with the
requirements of Chapter 2, Title 33 of the 1976 South Carolina Code
relating to the articles of incorporation.
Date: July 12, 1991 /s/ ROBERT D. INGLIS
------------- Robert D. Inglis
Leatherwood Walker Todd & Mann, P.C.
100 East Coffee Street
Post Office Box 87
Greenville, South Carolina 29602