ARTICLES OF INCORPORATION
OF
TOO GOURMET, INC.
I, the undersigned, for the purposes of incorporating and organizing a
corporation pursuant to the General Corporation Law of the State of Nevada, do
execute these Articles of Incorporation and do hereby certify as follows:
FIRST. The name of this corporation is Too Gourmet, Inc.
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SECOND. The address of this corporation's registered office in the
State of Nevada is 502 East John Street, Carson City, Nevada 89706. The name of
its resident agent at such address is CSC Services of Nevada, Inc.
THIRD. The purpose of this corporation is to engage in any lawful act
or activity for which corporations may be organized pursuant to the General
Corporation Law of the State of Nevada.
FOURTH. The total number of shares of capital stock which this
corporation shall have authority to issue is fifty five million (55,000,000)
with a par value of $.001 per share amounting to $55,000.00. Fifty million
(50,000,000) of those shares are Common Stock and five million (5,000,000) of
those shares are Preferred Stock. Each share of Common Stock shall entitle the
holder thereof to one vote, in person or by proxy, on any matter on which action
of the stockholders of this corporation is sought. The holders of shares of
Preferred Stock shall have no right to vote such shares, except (i) determined
by the Board of Directors of this corporation in accordance with the provisions
of Section (3) of ARTICLE FIFTH of these Articles of Incorporation, or (ii) as
otherwise provided by the Nevada General Corporation Law, as amended from time
to time.
FIFTH. The Board of Directors of this corporation shall be, and hereby
is, authorized and empowered, subject to limitations prescribed by law and the
provisions of the Article FOURTH of these Articles of Incorporation, to provide
for the issuance of the shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of Nevada, to establish
from time to time the number of shares to be included in each such series, and
to fix the designations, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions of each such
series. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
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(1) The number of shares constituting such series and the distinctive
designation of such series;
(2) The dividend rate on the shares of such series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of such series;
(3) Whether such series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(4) Whether such series shall have conversion privileges, and, if so,
the terms and conditions of such conversion privileges, including provision for
adjustment of the conversion rate, in such events as the Board of Directors
shall determine;
(5) Whether or not the shares of such series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or date
upon or after which those shares shall be redeemable, and the amount per share
payable in the event of redemption, which amount may vary in different
circumstances and at different redemption dates;
(6) Whether that series shall have a sinking fund for the redemption or
purchase of shares of such series, and, if so, the terms and amount of such
sinking fund;
(7) The rights of the shares of such series in the event of voluntary
or involuntary liquidation, dissolution or winding up of this corporation, and
the relative rights of priority, if any, of payment of shares of such series;
and
(8) Any other relative rights, preferences and limitations of such
series.
Dividends on issued and outstanding shares of Preferred Stock shall be
paid or declared and set apart for payment prior to any dividends shall be paid
or declared and set apart for payment on the shares of Common Stock with respect
to the same dividend period.
If, upon any voluntary or involuntary liquidation, dissolution or
winding up of this corporation, the assets of this corporation available for
distribution to holders of shares of Preferred Stock of all series shall be
insufficient to pay such holders the full and complete preferential amount to
which such holders are entitled, then such assets shall be distributed ratably
among the shares of all series of Preferred Stock in accordance with the
respective preferential amounts, including unpaid cumulative dividends, if any,
payable with respect thereto.
SIXTH. The incorporator of this corporation is Michael J. Muellerleile,
whose mailing address is 1301 Dove Street, Suite 460, Newport Beach, California
92660. The powers of the incorporator are to terminate upon the filing of these
Articles of Incorporation.
SEVENTH. No director or officer of this corporation shall have any
personal liability to this corporation or its stockholders for damages for
breach of fiduciary duty as a director or officer, except that this Article
Seventh shall not eliminate or limit the liability of a director or officer for
(i) acts or omissions which involve intentional misconduct, fraud or a knowing
violation of law, or (ii) the payment of dividends in violation of the Nevada
General Corporation Law. Any repeal or modification of this article by the
stockholders of this corporation shall not adversely affect any right or
protection of any director of this corporation existing at the time of such
repeal or modification.
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EIGHTH. This corporation reserves the right at any time, and from time
to time, to amend, alter, change or repeal any provision specified in these
Articles of Incorporation, and other provisions authorized by the laws of the
State of Nevada at any such time then in force may be added or inserted, in the
manner now or hereafter prescribed by law; and all rights, preferences and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to these Articles of Incorporation in
their present form or as hereafter amended are granted subject to the rights
reserved in this article.
NINTH. Capital stock issued by this corporation after the amount of the
subscription price or par value therefor has been paid in full shall not be
subject to pay debts of this corporation, and no capital stock issued by this
corporation and for which payment has been made shall ever be assessable or
assessed.
TENTH. (a) The affairs of this corporation shall be governed by a Board
of Directors of not more than fifteen (15) persons nor less than one (1) person,
as determined from time to time by vote of a majority of the Board of Directors
of this corporation; provided, however, that the number of directors shall not
be reduced so as to reduce the term of any director at the time in office. The
name and address of the initial member of the Board of Directors, which shall
initially consist of one director, are:
1. Cynthia Bergendahl
1301 Dove Street, Suite 460
Newport Beach, California 92660
(b) The Board of Directors of this corporation shall be divided into
three (3) classes, as nearly equal in numbers as the then total number of
directors constituting the entire Board of Directors permits, with the term of
office of one class expiring each year. At the first annual meeting of
stockholders of this corporation directors of the first class shall be elected
to hold office for a term expiring at the next succeeding annual meeting of
those stockholders, directors of the second class shall be elected to hold
office for a term expiring at the second succeeding annual meeting, and
directors of the third class shall be elected to hold office for a term expiring
at the third succeeding annual meeting of those stockholders. Any vacancies in
the Board of Directors for any reason, and any directorships resulting from any
increase in the number of directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the next election of
the class for which such directors shall have been chosen and until their
successors shall be elected and qualified. Notwithstanding the foregoing, and
except as otherwise required by law, whenever the holders of any one or more
series of Preferred Stock shall have the right, voting separately as a class, to
elect one or more directors of this corporation, the terms of the director or
directors elected by such holders shall expire at the next succeeding annual
meeting of stockholders. Subject to the foregoing, at each annual meeting of
stockholders the successors to the class of directors whose terms shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting of stockholders.
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(c) Notwithstanding any other provisions of these Articles of
Incorporation or the bylaws of this corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, these Articles of
Incorporation or the bylaws of this corporation), any director or the entire
Board of Directors of this corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of seventy-five percent
(75%) or more of the outstanding shares of capital stock of this corporation
entitled to vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders of this corporation
called for that purpose. Notwithstanding the foregoing, and except as otherwise
required by law, whenever the holders of any one or more series of Preferred
Stock shall have the right, voting separately as a class, to elect one or more
directors of this corporation, the provisions of section (c) of this article
shall not apply with respect to the director or directors elected by such
holders of Preferred Stock.
ELEVENTH. The period of existence of this corporation shall be
perpetual.
TWELFTH. No contract or other transaction between this corporation and
any other corporation, whether or not a majority of the shares of the capital
stock of such other corporation is owned by this corporation, and no act of this
corporation shall in any way be affected or invalidated by the fact that any of
the directors of this corporation are pecuniarily or otherwise interested in, or
are directors or officers of such other corporation. Any director of this
corporation, individually, or any firm of which such director may be a member,
may be a party to, or may be pecuniarily or otherwise interested in any contract
or transaction of this corporation; provided, however, that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors of this corporation, or a majority thereof; and any director
of this corporation who is also a director or officer of such other corporation,
or who is so interested, may be counted in determining the existence of a quorum
at any meeting of the Board of Directors of this corporation that shall
authorize such contract or transaction, and may vote thereat to authorize such
contract or transaction, with the same force and effect as if he or she were not
such director or officer of such other corporation or not so interested.
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THIRTEENTH. Subject to the provisions of any series of Preferred Stock
of this corporation which may at the time be issued and outstanding and
convertible into shares of Common Stock of this corporation, the affirmative
vote of at least two-thirds (2/3) of the outstanding shares of Common Stock held
by stockholders of this corporation other than the "related person" (as defined
later in these Articles of Incorporation), shall be required for the approval or
authorization of any "business combination" (as defined later in these Articles
of Incorporation) of this corporation with any related person; provided,
however, that such voting requirement shall not be applicable if:
(1) The business combination was approved by the Board of
Directors of this corporation either (A) prior to the acquisition by
such related person of the beneficial ownership of twenty percent (20%)
or requisition the outstanding shares of the Common Stock of this
corporation, or (B) after such acquisition, but only during such time
as such related person has sought and obtained the unanimous approval
by the Board of Directors of this corporation of such acquisition of
more than 20% of the Common Stock prior to such acquisition being
consummated; or
(2) The business combination is solely between this
corporation and another corporation, fifty percent (50%) or more of the
voting stock of which is owned by a related person; provided, however,
that each stockholder of this corporation receives the same type of
consideration in such transaction in proportion to his or her
stockholdings; or
(3) All of the following conditions are satisfied:
(A) The cash or fair market value of the property,
securities or other consideration to be received per share by
holders of Common Stock of this corporation in the business
combination is not less than the higher of (i) the highest per
share price (including brokerage commissions, soliciting
dealers fees, dealer-management compensation, and other
expenses, including, but not limited to, costs of newspaper
advertisements, printing expenses and attorneys' fees) paid by
such related person in acquiring any of its holdings of this
corporation's Common Stock or (ii) an amount which has the
same or a greater percentage relationship to the market price
of this corporation's Common Stock immediately prior to the
commencement of acquisition of this corporation's Common Stock
by such related person, but in no event in excess of two (2)
times the highest per share price determined in clause (i),
above; and
(B) After becoming a related person and prior to the
consummation of such business combination, (i) such related
person shall not have acquired any newly issued shares of
capital stock, directly or indirectly, from this corporation
(except upon conversion of convertible securities acquired by
it prior to becoming a related person or upon compliance with
the provision of this article or as a result of a pro rata
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stock dividend or stock split) and (ii) such related person
shall not have received the benefit, directly or indirectly,
(except proportionately as a stockholder) of any loans,
advances, guarantees, pledges or other financial assistance or
tax credits provided by this corporation, or made any major
changes in this corporation's business or equity capital
structure; and
(C) A proxy statement complying with the requirements
of the Securities Exchange Act of 1934, whether or not this
corporation is then subject to such requirements, shall be
mailed to the public stockholders of this corporation for the
purpose of soliciting stockholder approval of such business
combination and shall contain at the front thereof, in a
prominent place (i) any recommendations as to the advisability
(or inadvisability) of the business combination which the
continuing directors, or any outside directors, may determine
to specify, and (ii) the opinion of a reputable national
investment banking firm as to the fairness (or not) of the
terms of such business combination, from the point of view of
the remaining public stockholders of this corporation (such
investment banking firm to be engaged solely on behalf of the
remaining public stockholders, to be paid a reasonable fee for
its services by this corporation upon receipt of such opinion,
to be a reputable national investment banking firm which has
not previously been associated with such related person and,
if there are at the time any such directors, to be selected by
a majority of the continuing directors and outside directors).
For purposes of this article:
(1) The term "business combination" shall be defined as and mean (a)
any merger or consolidation of this corporation with or into a related person;
(b) any sale, lease, exchange, transfer or other disposition, including, without
limitation, a mortgage or any other security device, of all or any substantial
part of the assets of this corporation, including, without limitation, any
voting securities of a subsidiary, or of a subsidiary, to a related person; (c)
any merger or consolidation of a related person with or into this corporation or
a subsidiary of this corporation; (d) any sale, lease, exchange, transfer or
other disposition of all or any substantial part of the assets of a related
person to this corporation or a subsidiary of this corporation; (e) the issuance
of any securities of this corporation or a subsidiary of this corporation to a
related person; (f) the acquisition by this corporation or a subsidiary of this
corporation of any securities of a related person; (g) any reclassification of
Common Stock of this corporation, or any recapitalization involving Common Stock
of this corporation, consummated within five (5) years after a related person
becomes a related person, and (h) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of business
combination.
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(2) The term "related person" shall be defined as and mean and include
any individual, corporation, trust, association, partnership or other person or
entity which, together with their "affiliates" and "associates" (defined later
in these Articles of Incorporation), "beneficially" owns (as this term is
defined in Rule 13d-3 of the General Rules and Regulations pursuant to the
Securities Exchange Act of 1934), in the aggregate 20% or more of the
outstanding shares of the Common Stock of this corporation, and any "affiliate"
or "associate" (as those terms are defined in Rule 12b-2 pursuant to the
Securities Exchange Act of 1934) of any such individual, corporation, trust,
association, partnership or other person or entity;
(3) The term "substantial part" shall be defined as and mean more than
ten percent (10%) of the total assets of the corporation in question, as of the
end of its most recent fiscal year ending prior to the time the determination is
being made;
(4) Without limitation, any shares of Common Stock of this corporation
which any related person has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise, shall be
deemed beneficially owned by such related person;
(5) For the purposes of this article, the term "other consideration to
be received" shall include, without limitation, Common Stock of this corporation
retained by its existing public stockholders in the event of a business
combination with such related person pursuant to which this corporation is the
surviving corporation; and
(6) With respect to any proposed business combination, the term
"continuing director" shall be defined as and mean a director who was a member
of the Board of Directors of this corporation immediately prior to the time that
any related person involved in the proposed business combination acquired twenty
percent (20%) or more of the outstanding shares of Common Stock of this
corporation, and the term "outside director" shall be defined as and mean a
director who is not (a) an officer or employee of this corporation or any
relative of an officer or employee, (b) a related person or an officer, director
employee, associate or affiliate of a related person, or a relative of any of
the foregoing, or (c) a person having a direct or indirect material business
relationship with this corporation.
FOURTEENTH. No action required to be taken or which may be taken at any
annual or special meeting of stockholders of this corporation may be taken
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
FIFTEENTH. All of the powers of this corporation, insofar as the same
may be lawfully vested by these Articles of Incorporation in the Board of
Directors, are hereby conferred upon the Board of Directors of this corporation.
In furtherance and not in limitation of that power, the Board of Directors shall
have the power to make, adopt, alter, amend and repeal from time to time bylaws
of this corporation, subject to the right of the shareholders entitled to vote
with respect thereto to adopt, alter, amend and repeal bylaws made by the Board
of Directors; provided, however, that bylaws shall not be adopted, altered,
amended or repealed by the stockholders of this corporation, except by the vote
of the holders of not less than two thirds (2/3) of the outstanding shares of
stock entitled to vote upon the election of directors.
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The undersigned incorporator hereby acknowledges that the foregoing
Articles of Incorporation is his act and deed.
IN WITNESS WHEREOF, the undersigned incorporator has hereunto affixed
his signature at Newport Beach, California this 7th day of April, 2001.
Incorporator:
/s/ Michael J. Muellerleile
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Michael J. Muellerleile