Exhibit 3.161
CERTIFICATE OF OWNERSHIP AND MERGER
OF
CBH PUBLISHING, INC.
(a Texas corporation)
WITH AND INTO
CBH HOLDINGS, INC.
(a Delaware corporation)
The undersigned corporation, CBH Holdings, Inc., a corporation duly organized
under the laws of Delaware (the "Corporation), hereby certifies as follows:
FIRST: That the Corporation is incorporated pursuant to the General Corporation
Law of the State of Delaware.
SECOND: That the Corporation owns all the outstanding shares of the capital
stock of CBH Publishing, Inc., a Texas corporation ("Publishing").
THIRD: That the Corporation, by the resolutions of its Board of Directors duly
adopted by unanimous written action as of the 31st day of March, 1995, and
attached hereto as Exhibit A, determined to merge Publishing with and into
itself, with the Corporation being the surviving corporation, on the conditions
set forth in such resolutions.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed
this 11th day of April, 1995.
CBH HOLDINGS. INC.
/s/ James J. Viera
-----------------------------------
James J. Viera, Vice President
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:43 PM 04/12/1995
950081730 -- 2140502
EXHIBIT A
WHEREAS, the Corporation owns all of the issued and outstanding capital
stock of CBH Publishing. Inc., a Texas corporation ("Publishing"); and
WHEREAS, the Corporation desires to increase the efficiency of the
operations of Publishing by merging Publishing with and into the Corporation;
and
WHEREAS, the Directors believe it is in the best interests of the
Corporation and its shareholder to effect a such a merger;
NOW, THEREFORE, IT IS HEREBY RESOLVED, that the merger of Publishing with
and into the Corporation in accordance with the terms and conditions set forth
in that certain Agreement and Plan of Merger, attached hereto as Exhibit 1 (the
"Merger"), is approved.
FURTHER RESOLVED, that in connection with the Merger the name of the
Corporation shall be changed to "Southwest Art, Inc." pursuant to Section 253(b)
of the Delaware General Corporation Law.
FURTHER RESOLVED, that the officers of the Corporation and each of them
are hereby authorized and directed to execute that certain Agreement and Plan
of Merger and to take any and all other actions, including but not limited to
filing the Certificate of Ownership and Merger evidencing the Merger with the
Secretary of State of Delaware and with the Office of Recorder of Deeds of the
County of Kent, Delaware, in the manner required by law, and to execute such
certificates, documents and other instruments as such officer or officers may
deem necessary, appropriate or desirable to cause the Corporation to effect the
Agreement and Plan or Merger.
EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is entered into as of this 31st day of
March, 1995, by and between CBH Holdings, Inc., a Delaware corporation
("Holdings"), and CBH Publishing, Inc., a Texas corporation ("Publishing").
WITNESSETH
WHEREAS, Holdings is a Delaware corporation with its registered office in
the State of Delaware located at The Prentice-Hall Corporation System. Inc., 229
South State Street, Dover, Delaware 19901; and
WHEREAS, Publishing is a Texas corporation with its registered office in
the State of Texas located at 5444 Westheimer, Suite 1440, Houston, Texas 77056;
and
WHEREAS, the Boards of Directors of Holdings and Publishing have
determined that it is desirable and in the best interests of their respective
corporations and the shareholders of such corporations that Publishing be merged
with and into Holdings on the terms and conditions hereinafter set forth and in
accordance with applicable provisions of the laws of the State of Delaware and
the State of Texas that permit such merger and the Board of Directors of each
corporation has, by resolution, duly adopted, approved, certified, executed and
acknowledged this Agreement and Plan of Merger (the "Plan").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions hereof, the parties hereto agree that
Publishing shall be merged with and into Holdings and that the terms and
conditions of such merger shall be as follows:
1. The Merger. Publishing shall be merged with and into Holdings in
accordance with the terms of the Plan and the applicable provisions of the
Delaware General Corporation Law and the Texas Business Corporation Act
(the "Merger").
2. Al1ocation of Property of Publishing. Holdings shall thereupon
and thereafter, to the extent consistent with its Certificate of
Incorporation as in effect at the Effective Time (as hereinafter defined),
possess all rights, privileges, immunities, of a public as well as of a
private nature of Publishing, and all property, real, personal and mixed,
and all debts due on whatever account, and all other choses in action and
every other interest of or belonging to Publishing shall by virtue of the
Merger and without further action, be taken and transferred to and vested
in Holdings. The title to any real estate, or any interest therein, vested
in Publishing shall not revert or be an any way impaired by reason of the
Merger. Holdings shall thereafter he responsible and liable for all the
liabilities, obligations
and penalties of Publishing; and any claim existing or action or
proceeding, civil or criminal, pending by or against Publishing may be
prosecuted as if the Merger had not taken place, or Holdings may be
substituted in place of Publishing; and any judgment rendered against
Publishing may be enforced against Holdings. Neither any rights of
creditors nor any liens upon the property of Publishing shall be impaired
by the Merger.
3. Surviving Corporation. At the Effective Time the surviving
corporation shall be Holdings (hereinafter sometimes referred to as the
"Surviving Corporation").
4. Cancellation of Shares. The manner and basis of canceling the
shares of stock of Publishing shall be as follows:
(a) Each share of Common Stock of Publishing issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger, be canceled, null and void, and cease to exist as of
the Effective Time and no securities of the Surviving Corporation or
any other corporation, or any money or property, shall be issued or
transferred in exchange therefor.
(b) As soon as practicable after the Effective Time, the
holder of the stock certificate theretofore representing issued and
outstanding shares of Publishing immediately prior to the Effective
Time shall surrender the same to the Surviving Corporation, and upon
such surrender, such certificate shall be marked "canceled" and
retained by the Secretary of the Surviving Corporation.
5. Amendment to Articles of Incorporation of the Surviving
Corporation. At the Effective Time, the name of the Surviving Corporation
shall be changed to "Southwest Art, Inc." In all other respects, the
Certificate of Incorporation, as amended, of Holdings in effect
immediately prior to the Effective Time shall become the Certificate of
Incorporation of the Surviving Corporation.
6. By-Laws. At the Effective Time, the By-Laws of Holdings
immediately prior to the Effective Time shall become the By-Laws of the
Surviving Corporation at the Effective Time.
7.Effective Time. The "Effective Time" shall occur at the later of
the time the Certificate of Ownership and Merger is accepted for filing by
the Secretary of State of Delaware and the Articles of Merger are accepted
for filing by the Secretary of State of Texas.
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8. Effect of Merger. At the Effective Time, the separate existence
of Publishing shall cease and Publishing shall be merged with and into the
Surviving Corporation.
9. Further Assurances. If at any time the Surviving Corporation
determines that any further action is necessary or desirable to vest,
perfect or confirm in the Surviving Corporation, according to the terms
hereof, title to any property rights of Publishing, the former officers
and directors of Publishing and each of them shall take such action as is
necessary or desirable to vest, perfect or confirm title in such property
or rights in the Surviving Corporation, and otherwise carry out the
purposes of the Plan.
10. Counterparts. Any number of counterparts hereof may he executed
and each such counterpart shall be deemed to be an original instrument.
IN WITNESS WHEREOF, the parties hereto have each caused the Plan to be
executed by the respective duly authorized officers as of the date first written
above.
CBH HOLDINGS, INC.
/s/ James J. Viera
-----------------------------------
James J. Viera, Vice President
CBH PUBLISHING, INC.
/s/ James J. Viera
-----------------------------------
James J. Viera, Vice President
CERTIFICATE OF INCORPORATION
of
CBH HOLDINGS, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the "corporation")
is
CBH holdings, INC.
SECOND: The address, including street, number, city, and county, of the
registered office of the corporation in the State of Delaware is 229 South State
Street, City of Dover, County of Kent; and the name of the registered agent of
the corporation in the State of Delaware at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is One Hundred Thousand (100,000), with a par value of
One Cent ($.01). All such shares are of one class and are Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
---- ---------------
Barbara Toffler c/o Rubin Gross Harris Fischl & Roth
1290 Avenue of the Americas
New York, New York 10104
SIXTH: The corporation is to have perpetual existence.
SEVENTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the By-Laws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 190 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the By-Laws of the
corporation may be exercised by the Board of Directors of the corporation;
provided, however, that any provision for the classification of directors
of the corporation for staggered terms pursuant to the provisions of
subsection (d) of Section 141 of the General Corporation Law of the State
of Delaware shall be set forth in an initial By-Law or in a By-Law adopted
by the stockholders entitled to vote of the corporation unless provisions
for such classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only one class of
stock, each outstanding share shall entitle the holder thereof to notice
of, and the right to vote at, any meeting of stockholders. Whenever the
corporation shall be authorized to issue more than one class of stock, no
outstanding share of any class of stock which is denied voting power under
the provisions of the certificate of incorporation shall entitle the
holder thereof to the right to vote at any meeting of stockholders except
as the provisions of paragraph (2) of subsection (b) of Section 242 of the
General Corporation Law of the State of Delaware shall otherwise require,
provided that no share of any such class which is otherwise denied voting
power shall entitle the holder thereof to vote upon the increase or
decrease in the number of authorized shares of said class.
EIGHT: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented.
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NINTH: The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify and advance expenses to any and all persons
whom it shall have power to indemnify and advance expenses to under said section
from and against any and all of the expenses, liabilities or other matters
referred to in or covered by said section, and the indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
TENTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the corporation by this
certificate of incorporation are granted subject to the provisions of this
Article TENTH.
Signed on October 9, 1987
/s/ Barbara Toffler
----------------------------
Barbara Toffler, Incorporator
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[Partly legible number] 877288023
FILED
OCT 13 1987
[ILLEGIBLE] 9AM
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CBH HOLDINGS, INC.
The undersigned corporation, in order to amend its Certificate of
Incorporation hereby certifies as follows:
FIRST: The name of the corporation is CBH HOLDINGS, INC. (hereinafter
called the "corporation").
SECOND: The amendment to the Certificate of Incorporation, effected hereby
is as follows:
Article FOURTH of the Certificate of Incorporation, relating to the
stock of the corporation, is hereby amended in its entirety as
follows:
"FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is One Hundred Five Thousand
(105,000), divided into two classes, of which One Hundred Thousand
(100,000) shares of the par value of One Cent ($.01) each shall be
designated Common Stock and Five Thousand (5,000) shares of the par
value of One Dollar ($1.00) each shall be designated Preferred
Stock.
The designations, preferences and relative, participating,
optional and other special rights of the Preferred Stock and the
Common Stock and the qualifications, limitations and restrictions
thereof, are as follows:
1. Dividends. The holders of the Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors of the corporation, out of any funds legally
available therefor, cumulative preferential dividends on
shares of the Preferred Stock outstanding, at the per annum
rate per share equal to the prime rate as then announced by
MBank Houston, N.A. ("Prime") plus 1%, multiplied by $87.05,
payable in one installment on the 15th day of October in each
year commencing on October 15, 1992.
Such dividends on the Preferred Stock shall be
cumulative from October 15, 1992. So long as there is any
arrearage on the Preferred Stock
dividends, no dividend shall be payable on the Common Stock.
If the dividends on any shares of the Preferred Stock shall be
in arrears, the holders thereof shall not be entitled to any
interest or sum of money in lieu of interest thereon.
2. Redemption. The corporation shall, on the 15th day of
October of each year for the years 1988 through 1992, redeem
the number of shares of the then outstanding Preferred Stock
in an amount equal to the corporation's Excess Cash Flow, as
hereinafter defined, as determined on the last day of the
month preceding such redemption date. The corporation shall be
deemed to have Excess Cash Flow, if, after giving effect to
the redemption provided for herein, (1) neither the
corporation nor CBH Publishing, Inc., its wholly-owned
subsidiary ("CBH") is in default in respect of any covenants
contained in any agreement pertaining to any outstanding
amount owed by the corporation or CBH in order to consummate
the transactions contemplated by a certain Acquisition
Agreement (the "Acquisition Agreement") dated as of July 24,
1987 between CBH and Southwest Art, Inc., among others, or
borrowings for the conduct of the operations of the
corporation and/or CBH, or (ii) if no such agreement then
exists, the ratio of CBH's then current assets to then current
liabilities, as the same relates to the business of Southwest
Art Magazine, is then at least 1.5 to 1.0. The foregoing
redemption shall be upon notice duly given as hereinafter
provided, by paying or providing for the payment in cash of a
discounted redemption price as described in paragraph 4 below.
On each of October 15, 1993, October 15, 1994, and October 15,
1995, the corporation shall redeem thirty-three and one-third
(33 1/3%) percent, fifty (50%) percent and one hundred (100%)
percent, respectively, of the then outstanding Preferred
Stock, upon notice duly given as hereinafter provided, by
paying or providing for the payment in cash of a redemption
price of $87.05 per share; provided, however, that the
corporation shall not be required to redeem any Preferred
Stock on October 15, 1993 and October 15, 1994, unless the
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corporation, after giving effect to such redemption, has
Excess Cash Flow as determined on the last day of the month
preceding such redemption date. The foregoing notwithstanding,
on October 15, 1995 the corporation shall redeem, if it has
not already done so, all the remaining outstanding shares of
the Preferred Stock, out of funds of the corporation which are
legally available therefor, upon notice duly given as
hereinafter provided, by paying or providing for the payment
of cash of a redemption price of $87.05 per share. In
addition, the corporation shall pay for each share to be
redeemed an amount equal to the dividends accrued thereon but
not paid for the period from the date on which dividends on
such shares became cumulative to and including the date fixed
for redemption. Such accrual shall be computed without
interest.
Subject to the limitations prescribed in this Article
FOURTH and any further limitations which may from time to time
be prescribed by the Board of Directors in accordance
herewith, the holders of Common Stock shall be entitled to
receive dividends on the Common Stock, when, as and if
declared by the Board of Directors, out of the funds of the
corporation which are legally available therefor.
At least ten (10) days prior notice of every such
redemption of the Preferred Stock shall be mailed to the
holders of record of the Preferred Stock to be redeemed at
their last known post office addresses as shown by the
corporation's records. Each such notice shall specify the date
fixed for redemption and the place where payment of the
redemption price is to be made upon surrender for cancellation
of the certificates representing shares called for redemption.
No failure to mail such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings
for such redemption except as to any holder to whom the
corporation has failed to mail said notice or except as to any
holder whose
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notice was defective. Any notice which was mailed in the
manner herein provided shall be conclusively presumed to have
been duly given whether or not the holder receives the notice.
In case of the redemption of only a part of the
Preferred Stock outstanding at he time, the shares of the
Preferred Stock to be redeemed shall be selected either pro
rata or, if required by the terms of any agreement with the
corporation, in the manner prescribed by such agreement. The
Board of Directors shall have full power and authority to
prescribe the manner in which and, subject to the provisions
and limitations herein contained, the terms and conditions
upon which such Preferred Stock shall be redeemed from time to
time.
If the aforesaid notice of redemption shall have been
duly given and if, on or before the redemption date designated
in such notice, the corporation shall have deposited in trust
with any bank or trust company having a capital, surplus and
undivided profits aggregating at least Five Million
($5,000,000) Dollars, named in such notice, all funds
necessary for the redemption of the shares of the Preferred
Stock so called for redemption, then from and after the
redemption date designated in such notice and notwithstanding
that any certificates for such shares shall not have been
surrendered for cancellation (a) all shares of such Preferred
Stock so called for redemption shall no longer be deemed to be
outstanding, and (b) all rights with respect to such shares of
the Preferred Stock called for redemption shall forthwith
cease and terminate except only the right of the holders
thereof to receive the moneys so deposited, but without
interest. Any interest accrued on such funds shall be paid to
the corporation from time to time. Any funds so set aside or
deposited, as the case may be, and unclaimed at the end of six
(6) years from such redemption date shall be released and/or
repaid to the corporation, and such holders of such Preferred
Stock so called for redemption
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as shall not have received the redemption price prior to such
release and/or payment to the corporation shall look only to
the corporation for payment of the redemption price.
3. Liquidation, Dissolution, Winding Up, Sale of Assets. In
the event of any liquidation, dissolution or winding up of the
affairs of the corporation, whether voluntary or involuntary,
or in the event of the sale of substantially all of the assets
of the corporation or any wholly-owned subsidiary, the holders
of all of the then outstanding shares of the Preferred Stock
shall be entitled to receive, out of the net assets of the
corporation, after payment or provision for payment of the
debts and other liabilities of the corporation, an amount in
cash equal to the discounted redemption price per share as
described in paragraph 4 below, and no more, before any
distribution or payment shall be made to the holders of Common
Stock. In case the net assets of the corporation available for
distribution are insufficient to pay to holders of all
outstanding shares of the Preferred Stock the full amount to
which they are entitled, the entire net assets of the
corporation remaining shall be distributed ratably to the
holders of all outstanding shares of the Preferred Stock in
proportion to the full amounts which would be payable on such
distribution if all amounts payable were paid in full. Neither
the consolidation nor merger of the corporation into or with
any other corporation or corporations shall be deemed a
liquidation, dissolution or winding up of the affairs of the
corporation within the meaning of any of the provisions of
this subparagraph (3), unless such consolidation or merger
would be deemed a sale of the business of Southwest Art
Magazine.
4. Discounted Redemption Price.
Discounted redemption price as contemplated herein for any
redemption of shares of Preferred Stock prior to October 15,
1993 shall mean an amount equal to $87.05 per share discounted
back on an annual basis from October 15, 1993
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to the date of redemption by Prime plus 1%, multiplied by the
number of shares then being redeemed.
5. Consideration for Shares. The authorized but unissued
shares of Common Stock and the authorized but unissued shares
of the Preferred Stock may be issued for such consideration,
not less than the par value thereof, as may be fixed from time
to time by the Board of Directors.
6. Voting. Except as otherwise determined pursuant to
authority of the Board of Directors as hereinbefore provided,
or by the General corporation Law of the State of Delaware,
all voting rights shall be vested exclusively in the holders
of the outstanding shares of Common Stock and each such holder
shall be entitled to one vote per share for all purposes for
each share of Common Stock held of record by such holder.
Except as otherwise determined pursuant to authority of
the Board of Directors as hereinbefore provided, or by the
General Corporation Law of the State of Delaware, the holders
of the Preferred Stock shall not be entitled to vote for any
purpose nor shall they be entitled to notice of meetings of
stockholders."
THIRD: The aforesaid amendment was duly adopted by the sole stockholder
and sole director of the corporation in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: This Certificate of Amendment is executed by the sole stockholder
of the corporation in accordance with the applicable provisions of Section 103
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate has been signed the 14th day of
October, 1987, and the statements contained therein are affirmed as true under
penalties of perjury.
CBH HOLDINGS, INC.
By: /s/ Clay B. Hall
--------------------------------
Clay B. Hall, Sole Stockholder
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