Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 2.54M
Business-Combination Transaction
2: EX-1.1 Underwriting Agreement 44 211K
28: EX-3.1(AA) Articles of Incorporation/Organization or By-Laws 9 44K
29: EX-3.1(AB) Articles of Incorporation/Organization or By-Laws 3 26K
30: EX-3.1(AC) Articles of Incorporation/Organization or By-Laws 10 43K
31: EX-3.1(AD) Articles of Incorporation/Organization or By-Laws 4 29K
32: EX-3.1(AE) Articles of Incorporation/Organization or By-Laws 3 30K
33: EX-3.1(AF) Articles of Incorporation/Organization or By-Laws 6 39K
34: EX-3.1(AG) Articles of Incorporation/Organization or By-Laws 11 39K
35: EX-3.1(AH) Articles of Incorporation/Organization or By-Laws 4 27K
36: EX-3.1(AI) Articles of Incorporation/Organization or By-Laws 4 31K
37: EX-3.1(AJ) Articles of Incorporation/Organization or By-Laws 21 69K
38: EX-3.1(AK) Articles of Incorporation/Organization or By-Laws 6 34K
39: EX-3.1(AL) Articles of Incorporation/Organization or By-Laws 5 40K
40: EX-3.1(AM) Articles of Incorporation/Organization or By-Laws 5 32K
41: EX-3.1(AN) Articles of Incorporation/Organization or By-Laws 4 31K
42: EX-3.1(AO) Articles of Incorporation/Organization or By-Laws 5 36K
43: EX-3.1(AP) Articles of Incorporation/Organization or By-Laws 3 31K
44: EX-3.1(AQ) Articles of Incorporation/Organization or By-Laws 4 29K
45: EX-3.1(AR) Articles of Incorporation/Organization or By-Laws 3 26K
46: EX-3.1(AS) Articles of Incorporation/Organization or By-Laws 3 31K
47: EX-3.1(AT) Articles of Incorporation/Organization or By-Laws 9 55K
48: EX-3.1(AU) Articles of Incorporation/Organization or By-Laws 12 52K
49: EX-3.1(AV) Articles of Incorporation/Organization or By-Laws 12 50K
50: EX-3.1(AW) Articles of Incorporation/Organization or By-Laws 7 47K
51: EX-3.1(AX) Articles of Incorporation/Organization or By-Laws 15 47K
52: EX-3.1(AY) Articles of Incorporation/Organization or By-Laws 14 58K
53: EX-3.1(AZ) Articles of Incorporation/Organization or By-Laws 8 40K
3: EX-3.1(B) Articles of Incorporation/Organization or By-Laws 5 35K
54: EX-3.1(BA) Articles of Incorporation/Organization or By-Laws 11 47K
55: EX-3.1(BB) Articles of Incorporation/Organization or By-Laws 19 73K
56: EX-3.1(BC) Articles of Incorporation/Organization or By-Laws 21 62K
57: EX-3.1(BD) Articles of Incorporation/Organization or By-Laws 16 54K
58: EX-3.1(BE) Articles of Incorporation/Organization or By-Laws 9 49K
59: EX-3.1(BF) Articles of Incorporation/Organization or By-Laws 18 58K
60: EX-3.1(BG) Articles of Incorporation/Organization or By-Laws 5 31K
61: EX-3.1(BH) Articles of Incorporation/Organization or By-Laws 3 30K
62: EX-3.1(BI) Articles of Incorporation/Organization or By-Laws 5 32K
63: EX-3.1(BJ) Articles of Incorporation/Organization or By-Laws 9 41K
64: EX-3.1(BK) Articles of Incorporation/Organization or By-Laws 4 30K
65: EX-3.1(BL) Articles of Incorporation/Organization or By-Laws 3 30K
66: EX-3.1(BM) Articles of Incorporation/Organization or By-Laws 4 29K
67: EX-3.1(BN) Articles of Incorporation/Organization or By-Laws 3 30K
68: EX-3.1(BO) Articles of Incorporation/Organization or By-Laws 4 31K
69: EX-3.1(BP) Articles of Incorporation/Organization or By-Laws 5 38K
70: EX-3.1(BQ) Articles of Incorporation/Organization or By-Laws 3 29K
71: EX-3.1(BR) Articles of Incorporation/Organization or By-Laws 3 30K
72: EX-3.1(BS) Articles of Incorporation/Organization or By-Laws 15 47K
4: EX-3.1(C) Articles of Incorporation/Organization or By-Laws 2 26K
5: EX-3.1(D) Articles of Incorporation/Organization or By-Laws 2 26K
6: EX-3.1(E) Articles of Incorporation/Organization or By-Laws 2 26K
7: EX-3.1(F) Exhibit 3.1(G) 3 28K
8: EX-3.1(G) Articles of Incorporation/Organization or By-Laws 9 43K
9: EX-3.1(H) Articles of Incorporation/Organization or By-Laws 10 50K
10: EX-3.1(I) Articles of Incorporation/Organization or By-Laws 17 65K
11: EX-3.1(J) Articles of Incorporation/Organization or By-Laws 1 23K
12: EX-3.1(K) Articles of Incorporation/Organization or By-Laws 2 26K
13: EX-3.1(L) Articles of Incorporation/Organization or By-Laws 3 30K
14: EX-3.1(M) Articles of Incorporation/Organization or By-Laws 3 27K
15: EX-3.1(N) Articles of Incorporation/Organization or By-Laws 6 32K
16: EX-3.1(O) Articles of Incorporation/Organization or By-Laws 2 26K
17: EX-3.1(P) Articles of Incorporation/Organization or By-Laws 16 62K
18: EX-3.1(Q) Articles of Incorporation/Organization or By-Laws 10 44K
19: EX-3.1(R) Articles of Incorporation/Organization or By-Laws 3 29K
20: EX-3.1(S) Articles of Incorporation/Organization or By-Laws 9 41K
21: EX-3.1(T) Articles of Incorporation/Organization or By-Laws 10 45K
22: EX-3.1(U) Articles of Incorporation/Organization or By-Laws 6 38K
23: EX-3.1(V) Articles of Incorporation/Organization or By-Laws 5 30K
24: EX-3.1(W) Articles of Incorporation/Organization or By-Laws 4 32K
25: EX-3.1(X) Articles of Incorporation/Organization or By-Laws 2 25K
26: EX-3.1(Y) Articles of Incorporation/Organization or By-Laws 2 26K
27: EX-3.1(Z) Exhibit 3.1 2 26K
73: EX-3.2(B) Articles of Incorporation/Organization or By-Laws 17 84K
77: EX-4.11 Instrument Defining the Rights of Security Holders 168 680K
78: EX-4.12 Instrument Defining the Rights of Security Holders 6 40K
74: EX-4.5 Instrument Defining the Rights of Security Holders 4 34K
75: EX-4.6 Instrument Defining the Rights of Security Holders 7 46K
76: EX-4.8 Instrument Defining the Rights of Security Holders 6 40K
79: EX-5.1 Opinion re: Legality 5 39K
80: EX-10.2 Material Contract 157 409K
81: EX-12.1 Statement re: Computation of Ratios 2± 26K
82: EX-23.2 Consent of Experts or Counsel 1 23K
83: EX-25.1 Statement re: Eligibility of Trustee HTML 81K
84: EX-99.1 Miscellaneous Exhibit HTML 82K
85: EX-99.2 Miscellaneous Exhibit HTML 37K
86: EX-99.3 Miscellaneous Exhibit HTML 26K
87: EX-99.4 Miscellaneous Exhibit HTML 31K
88: EX-99.5 Miscellaneous Exhibit HTML 30K
EX-3.1(AJ) — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.1(AJ)
CERTIFICATE OF INCORPORATION
of
WENATCHEE-BEEBE ORCHARD COMPANY
* * * * *
FIRST: The name of this Corporation is Wenatchee-Beebe Orchard Company.
SECOND: Its principal office in the State of Delaware is located at No. 7
West Tenth Street, in the City of Wilmington, County of New Castle. The name and
address of its resident agent is the Corporation Trust Company of America, No. 7
West Tenth Street, Wilmington, Delaware.
THIRD: The nature of the business or objects or purposes proposed to be
transacted, promoted or carried on by this Corporation are as follows:
(a) To purchase or otherwise acquire, own, operate and dispose of all or
any part of the business and real and personal properties, trade marks, trade
names, patents, franchises, good will and other assets of the Wenatchee-Beebe
Orchard Co., a Maine Corporation, and to carry on said business, to make payment
therefor by the issuance of common and preferred stock of this corporation or in
any other manner permitted by law and in connection wherewith to assume any or
all of the bonds, mortgages, franchises, leases, contracts, indebtedness,
liabilities and obligations of said corporation.
(b) To engage in the cultivation, planting and production of fruits and
all other agricultural products. To grow, purchase, sell either as owner or
agents or consignees, and to mortgage, pledge and generally to deal in fruits,
fruit products, and all other products of the orchard, farm or dairy. To acquire
by purchase, or otherwise, lease, sell, build, hold, own, equip and operate
warehouses for general or cold storage on commission or as owners of all kinds
of
fruits, agricultural or other products and merchandise, with power to issue
proper receipts and certificates. To act as factor or agent for any person, firm
or corporation.
(c) To organize, incorporate, reorganize, finance and to aid and assist
financially or otherwise, companies, corporations, joint stock companies,
syndicates, partnerships, individuals and associations of all kinds, and to
underwrite, subscribe for and endorse the bonds, stocks, securities, debentures,
notes or undertakings of any such company, corporation, joint stock company,
syndicate, partnership, individual or association, and to make any guarantee in
connection therewith or otherwise for the payment of money or for the
performance of any obligation or undertaking, and to do any and all things
necessary or convenient to carry any of such purposes into effect.
(d) To purchase and acquire securities, assets and property of every kind
and description at judicial, judiciary, trustee's, pledgee's, mortgagee's or
liquidating or public or private sales, and to carry on a general salvage,
liquidation and realization business; and also to do a general commission and
brokerage business.
(e) To hold in trust, issue on commission, make advances upon or sell,
lease, license, transfer, organize, reorganize, incorporate or dispose of any of
the undertakings or resulting investments aforesaid, or the stock or securities
thereof; to act as agent, or depositary for any of the above or like purposes,
or any purpose herein mentioned, and to act as fiscal agent of any other person,
firm or corporation.
(f) To obtain the grant of, purchase, lease, or otherwise acquire any
concessions, rights, options, patents, privileges, lands, rights of way, sites,
properties, undertakings or businesses, or any right, option or contract in
relation thereto, and to perform, carry out and
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fulfill the terms and conditions thereof, and to carry the same into effect, and
to develop, maintain, lease, sell, transfer, dispose of and otherwise deal with
the same.
(g) From time to time to apply for, purchase or acquire by assignment,
transfer or otherwise, and to exercise, carry out and enjoy any license, power,
authority, franchise, ordinance, order, right or privilege, which any government
or authority, supreme, municipal or local, or any corporation or other public
body shall enact, make or grant.
(h) To issue shares of the capital stock (of any class), bonds,
debentures, debenture stock, notes and other obligations of this corporation for
cash, for labor done, for property, real or personal or leases thereof, or for
any combination of any of the foregoing, or in exchange for the stock,
debentures, debenture stock, bonds, securities or obligations of any person,
firm, association, corporation or other organization.
(i) To purchase, acquire and lease, and to sell, lease and dispose of
water, water rights, water records, power privileges and appropriations for
power, light, heat, mining, milling, irrigation, agricultural, domestic or any
other use or purpose.
(j) To acquire by purchase, lease, own, hold, sell, mortgage and encumber
both improved and unimproved real estate wherever situate; to survey, subdivide,
plant, colonise and improve the same for purposes of sale or otherwise; and to
construct and erect thereon factories, works, plants, stores, mills, hotels,
houses and buildings.
(k) To manufacture, buy, sell and generally deal in, goods, wares,
merchandise, property and commodities of any and every class and description,
and all articles used or useful in connection therewith, insofar as may be
permitted by the laws of the State of Delaware; to engage in any business,
whether manufacturing or otherwise which this Corporation may deem advantageous
or useful in connection with any or all of the foregoing, and to purchase,
acquire,
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manufacture, market or prepare for market, sell and otherwise dispose of any
article, commodity or thing which this Corporation may use in connection with
its business.
(l) To secure, purchase, acquire, apply for, register, own, hold, sell or
dispose of any and all copyrights, trade-marks and other trade rights.
(m) To organize, or cause to be organized, under the laws of the State of
Delaware, or of any other state, territory or country, or the district of
Columbia, a corporation or corporations, for the purpose of accomplishing any or
all of the objects for which this Corporation is organized and to dissolve, wind
up, liquidate, merge or consolidate any such corporation or corporations, or to
cause the same to be dissolved, wound up, liquidated, merged or consolidated.
(n) To purchase, apply for, obtain or otherwise acquire any and all
letters patent, licenses, patent rights, patented processes and similar rights
granted by the United States or any other government or country, or any interest
therein, or any inventions which may seem capable of being used for or in
connection with any of the objects or purposes of this Corporation, and to use,
exercise, develop, sell, dispose of, lease, grant licenses in respect to, or
other interests in the same, and otherwise turn the same to account, and to
carry on any business, manufacturing or otherwise, which may be deemed to
directly or indirectly aid, effectuate or develop the objects or any of them of
this Corporation.
(o) To borrow money for any of the purposes of this Corporation, and to
issue bonds, debentures, debenture stock, notes and other obligations therefor,
and to secure the same by pledge or mortgage of the whole or any part of the
property of this Corporation, either real or personal, or to issue bonds,
debentures, debenture stock, notes or other obligations without any such
security.
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(p) To enter into, make, perform and carry out contracts of every kind for
any lawful purpose, without limit as to amount, with any person, firm,
association or corporation.
(q) To draw, make, accept, endorse, discount, guarantee, execute and issue
promissory notes, bills of exchange, drafts, warrants, and all kinds of
obligations and certificates and negotiable or transferable instruments.
(r) To purchase, hold, sell and transfer shares of its own capital stock
(of any class), bonds and other obligations of this Corporation from time to
time to such extent and in such manner and upon such terms as its Board of
Directors shall determine; provided that this Corporation shall not use any of
its funds or property for the purchase of its own shares of capital stock when
such use would cause any impairment of the capital of this Corporation; and
provided further that shares of its own capital stock belonging to this
Corporation shall not be voted upon directly or indirectly.
(s) To have one or more offices, to carry on any or all of its operations
and business, and, without restriction or limit as to amount, to purchase,
lease, or otherwise acquire, hold and own, and to mortgage, sell, convey, lease
or otherwise dispose of, real and personal property of every class and
description, in any of the states or territories of the United States, and in
the District of Columbia, and in any and, all foreign countries, subject to the
laws of such state, district, territory or country.
(t) To do any and all things herein set forth, and in addition such other
acts and things as are necessary or convenient to the attainment of the purposes
of this Corporation, or any of them, to the same extent as natural persons
lawfully might or could do in any part of the world, insofar as such acts are
permitted to be done by a corporation organised under the General Corporation
Law of the State of Delaware.
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The foregoing clauses shall be construed, both as objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of this
Corporation, and are in furtherance of, and in addition to, and not in
limitation of the general powers conferred by the laws of the State of Delaware.
It is the intention that the purposes, objects and powers specified in
this Article Third and all subdivisions thereof shall, except as otherwise
expressly provided, in nowise be limited or restricted by reference to or
inference from the terms of any other clause or paragraph of this Article, and
that each of the purposes, objects and powers specified in this Article Third
shall be regarded as independent purposes, objects and powers.
FOURTH: The total number of authorized shares of the capital stock of this
Corporation is 22500, divided into two classes, namely, preferred stock and
common stock, all of which shall be without nominal or par value. The total
number of shares of such preferred stock authorized is 12500 shares without
nominal or par value. The total number of shares of such common stock authorized
is 10000 shares without nominal or par value. The description of said classes of
stock, and the designations, preferences and restrictions, and voting powers, or
restrictions or qualifications thereof, of such preferred stock and common
stock, are as follows:
I. The preferred stock shall be entitled to dividends at the rate of five
dollars per annum.
II. Out of the surplus or net profits of this Corporation, as and when
declared by the Board of Directors, the holders of the preferred stock shall be
entitled to receive dividends at, but not exceeding, the dividend rate fixed,
payable quarterly on January 1, April 1, July 1 and October 1 in each year, from
the quarterly dividend payment date on or next preceding the date on which the
first shares shall have been issued, before any dividends shall be declared or
paid
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upon or set apart for the common stock, and before any sum shall be paid or set
apart for the purchase or redemption of preferred stock; and such dividends on
the preferred stock shall be cumulative from and after January 1, 1930 so that
if in any dividend period or periods full dividends upon the outstanding
preferred stock at the rate fixed therefore shall not have been paid, the
deficiency shall be declared and paid or set apart for payment before any
dividends shall be declared or paid upon or set apart for the common stock, and
before any such shall be paid or set apart for the purchase or redemption of
preferred stock.
III. Out of any surplus or net profits of this Corporation remaining after
full cumulative dividends as aforesaid upon the preferred stock then outstanding
shall have been paid for all past dividend periods, and after full dividends on
the preferred stock for the current dividend period shall have been declared and
paid or set apart for payment, and after making such provision, if any, as the
Board of Directors may deem necessary for working capital, then, and not
otherwise, dividends may be declared and paid upon the common stock, to the
exclusion of the holders of the preferred stock. The right to receive any
dividends which may be declared payable in stock is vested in the holders of the
common stock exclusively, but no such dividend shall be declared in any dividend
period unless full cumulative dividends upon the preferred stock then
outstanding shall have been paid for the past dividend periods and shall have
been declared and paid or set apart for payment for the current dividend period.
IV. The preferred stock shall be preferred as to both earnings and assets,
and in the event of any liquidation, dissolution or winding up of this
Corporation, or any reduction of its capital stock, resulting in a distribution
of any of its assets to its stockholders, the holders of the preferred stock
shall be entitled to receive, for each share thereof, an amount equal to $100
per share, together with all dividends accrued or in arrears thereon, before any
distribution of the
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assets shall be made to the holders of the common stock; but the holders of the
preferred stock shall be entitled to no further participation in such
distribution; and the holders of the common stock shall be entitled, to the
exclusion of the holders of the preferred stock, to share ratably in all assets
of this Corporation remaining after payment to the holders of the preferred
stock of the full preferential amounts aforesaid. If upon any such liquidation,
dissolution or winding up of this Corporation, or reduction of its capital
stock, the assets distributable among the holders of the preferred stock shall
be insufficient to permit the payment in full to such holders of the
preferential amounts aforesaid, then the entire assets of this Corporation to be
distributed shall be distributed among the holders of the preferred stock then
outstanding. As used in this Article the expression "dividends accrued or in
arrears" means, in respect to each share of the preferred stock an amount equal
to simple interest upon the sum of $100 per share at an annual rate equal to the
dividend rate from the date from which dividends thereon commenced to accrue to
the date as of which the computation is to be made, less the aggregate amount
(without interest thereon) of all dividends theretofore paid (or deemed to have
been paid) or declared and set aside for payment in respect thereof. Nothing in
this Paragraph shall be deemed to prevent the purchase or redemption of
preferred stock in any manner permitted in Paragraph V. A consolidation or
merger of this Corporation with any other corporation or corporations shall not
be regarded as a liquidation, dissolution or winding up of this Corporation
within the meaning of this Paragraph, but no such consolidation or merger shall
in any way impair the rights and preferences of the preferred stock.
V. This corporation may, at its option, from time to time on any dividend
payment date, redeem the whole or any part of the preferred stock at a price
equal to $100 per share, together with the amount of any dividends accrued or in
arrears thereon. Notice of any
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proposed redemption of preferred stock shall be given by this Corporation by
mailing a copy of such notice, at least thirty (30) days prior to the date fixed
for such redemption, to the holders of record of the preferred stock to be
redeemed, at their respective addresses appearing on the books of this
Corporation, and also, if so expressed in the certificates for the preferred
stock to be redeemed or in the by-laws of this Corporation, by publication in
such manner as shall have been so expressed. Any such redemption of preferred
stock shall be in such amount and at such place and by such method, whether by
lot or pro rata, as shall have been fixed by the Board of Directors and
expressed in the certificates therefor, or, if not so fixed and expressed, then
as shall from time to time be provided by the by-laws of this Corporation or be
determined by resolution of its Board of Directors. From and after the date
fixed in any such notice as the date of redemption, unless default shall be made
by this Corporation in providing moneys at the time and place specified for the
payment of the redemption price pursuant to said notice, all dividends on the
preferred stock thereby called for redemption shall cease to accrue and all
rights of the holders thereof as stockholders of this Corporation, except the
right to receive the redemption price, shall cease and determine. This
Corporation shall also have power, from time to time, to purchase for
retirement, either at public or private sale, the whole or any part of the
preferred stock upon the best terms reasonably obtainable, but in no event at a
price in respect of any shares of preferred stock greater than the redemption
price fixed. Such redemption or purchase for retirement may be effected by
payment out of the surplus or net profits arising from the business of this
Corporation remaining after full cumulative dividends to the date of such
redemption or purchase, upon all shares of the preferred stock then outstanding
and not then to be redeemed or purchased, shall have been paid or set apart for
payment. This Corporation may also, if and in such manner as may from time to
time be permitted by law, redeem and/or
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purchase for retirement the whole but not a part of the preferred stock out of
the proceeds of common stock and/or one or more other series of preferred stock
issued for the purpose. Preferred stock purchased or redeemed pursuant to this
Paragraph shall not be reissued and such stock shall be retired from time to
time in the manner provided by law.
VI. Unless with the affirmative vote or written consent of the holders of
at least eighty per cent of the shares of preferred stock at the time
outstanding (in addition to any other vote or consent at the time required by
law), this Corporation shall not:
(1) authorize or issue any stock or class of stock having priority
or preference over the preferred stock as to earnings or assets; or
(2) amend the provisions of this Article so as to alter or change
the preferences hereby given to the preferred stock, provided that nothing
herein contained is intended or shall be deemed to limit the right of this
Corporation to increase from time to time the number of shares of
preferred stock authorized in the manner provided by law;
VII. Holders of preferred and common stock shall possess equal voting
rights for all purposes.
VIII. No holder of stock of this Corporation shall have any preemptive or
preferential right of subscription to any shares of any class of stock of this
Corporation, whether now or hereafter authorized, or to any obligations
convertible into stock of this Corporation, issued or sold, nor any right of
subscription to any thereof other than such, if any, as the Board of Directors
in its discretion may from time to time determine, and at such price as the
Board of Directors may from time to time fix pursuant to the authority conferred
by this certificate; and any shares of stock or convertible obligations which
the Board of Directors may determine to offer for subscription to the holders of
stock may, as said Board shall determine, be offered exclusively either to
holders of preferred stock or to holders of common stock or partly to the
holders of preferred stock and partly to the holders of common stock, and in
such case in such
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proportions as between said classes of stock as the Board of Directors in its
discretion may determine.
IX. The capital stock of this Corporation without nominal or par value,
whether common or preferred, may be issued by this Corporation from time to time
for such consideration as may be fixed from time to time by the Board of
Directors without action by the stockholders and shares so issued the full
consideration for which has been paid or delivered shall be deemed full paid
stock and the holder of such shares shall not be liable for any further payment
thereon.
FIFTH: The number of shares with which this corporation will commence
business is ten (10) shares of common stock without any nominal or par value.
SIXTH: The name and places of residence of each of the original
subscribers to the capital stock of this Corporation are as follows:
NAME RESIDENCE NO. OF SHARES
---- --------- -------------
T.L. Croteau Wilmington, Delaware 8
T.L. Fray Wilmington, Delaware 1
Alfred Jervis Wilmington, Delaware 1
SEVENTH: The existence of this Corporation is to be perpetual.
EIGHTH: The private property of the stockholders of this Corporation shall
not be subject to the payment of corporate debts to any extent whatever.
NINTH: The number of directors of this Corporation shall be fixed and may
be altered from time to time as may be provided in the by-laws. In case of any
increase in the number of directors the additional directors may be elected by
the Board of Directors to hold office until the next annual meeting of the
stockholders and until their successors are elected and qualified. In case of
vacancies in the Board of Directors the latter may elect directors to fill such
vacancies.
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Any director may by a vote of a majority of the directors for any cause deemed
by them sufficient be removed as such director and any director may also be
removed by the stockholders at any annual or special meeting thereof for any
cause deemed sufficient by such meeting. Directors of this Corporation need not
be stockholders therein.
TENTH: In furtherance and not in limitation of the powers conferred by
statute the Board of Directors is expressly authorized:
(a) To fix, determine and vary from time to time the amount to be
maintained as surplus and the amount or amounts to be set apart as working
capital.
(b) To make, amend, alter, change, add to or repeal by-laws for this
Corporation, without any motion on the part of the stockholders. The by-laws
made by the directors may be amended, altered, changed, added to or repealed by
the stockholders.
(c) By resolution passed by a majority or the whole Board, to designate
three or more directors to constitute an Executive Committee which committee
shall have and exercise (except when the Board of Directors shall be in session)
such powers and rights of the Board of Directors in the management of the
business and affairs of this Corporation as may be provided in the by-laws or in
said resolution, and shall have power to authorize the seal of this Corporation
to be affixed to all papers which may require it.
(d) To authorize and cause to be executed mortgages and liens, without
limit as to amount, upon the real and personal property of this Corporation.
(e) From time to time to determine whether and to what extent, at what
time and place, and under what conditions and regulations the accounts and books
of this Corporation or any of them, shall be open to the inspection of any
stockholder; and no stockholder shall have
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any right to inspect any account or book or document of this Corporation except
as conferred by statute or the by-laws or as authorized by a resolution of the
stockholders or Board of Directors.
(f) To sell, assign, convey and otherwise dispose of a part of the
property, assets and effects of this Corporation less than the whole or less
than substantially the whole thereof, on such terms and conditions as they shall
deem advisable, without the assent of the stockholders in writing or otherwise;
and also to sell, assign, transfer, convey and otherwise dispose of the whole or
substantially the whole of the property, assets, effects, franchises, and
good-will of this Corporation on such terms and conditions as they shall deem
advisable but only with the assent in writing or pursuant to the affirmative
vote of the holders of not less than a majority in interest of the stock then
outstanding, but in any event not less than the amount required by law.
(g) All of the powers of this Corporation, insofar as the same lawfully
may be vested by this certificate in the Board of Directors, are hereby
conferred upon the Board of Directors of this Corporation.
ELEVENTH: In the absence of fraud, no contract or transaction between this
Corporation and any other association or corporation shall be affected by the
fact that any of the directors or officers of this Corporation are interested in
or are directors or officers of such other association or corporation, and any
director or officer of this Corporation individually may be a party to, or may
be interested in any much contract or transaction of this Corporation; and no
such contract or transaction of this Corporation with any person or persons,
firm, association or corporation, shall be effected by the fact that any
director or officer of this Corporation is a party to, or interested in such
contract or transaction, or in any way connected with such person or persons,
firm, association or corporation; and each and every person who may become a
director or officer of this Corporation is hereby relieved from any liability
that might otherwise exist
-13-
from thus contracting with this Corporation for the benefit of himself or any
person, firm, association or corporation in which he may be in any wise
interested.
TWELFTH: This corporation may in its by-laws fix the number (not less than
the number required by law or in this certificate) of shares, the holders of
which must consent to, or which must be voted in favor of, any specific act or
acts by this corporation, or its Board of Directors or Executive Committee, and
during the period for which such number remains so fixed, such specified act or
acts shall not and may not be performed or carried out by this Corporation, or
its Board of Directors or Executive Committee without the consent or affirmative
vote of the holders of at least the number of shares so fixed.
THIRTEENTH: Except where other notice is specifically required by statute
written notice only of any stockholders' meeting given as provided in the
by-laws shall be sufficient without publication or other form of notice.
FOURTEENTH: Any officer or agent elected or appointed by the Board of
Directors, or by the Executive Committee, or by the stockholders, or any member
of the Executive Committee, or of any other committee, may be removed at any
time, with or without cause, in such manner as shall be provided in the by-laws
of this Corporation.
FIFTEENTH: This Corporation may in its by-laws make any other provisions
or requirements for the management or conduct of the business of this
Corporation, provided the same be not inconsistent with the provisions of this
certificate, or contrary to the laws of the state of Delaware or of the United
States.
SIXTEENTH: This Corporation reserves the right to amend, alter, change,
add to or repeal any provision contained in this certificate of incorporation
(subject to the provisions of Paragraph VI of Article Fourth hereof), in the
manner now or hereafter prescribed by statute, and
-14-
all rights conferred on officers, directors and stockholders herein are granted
subject to this reservation; provided, however, that wherever in this
certificate or by the law of Delaware the written consent or affirmative vote is
required of the holders of a designated proportion of any class or classes of
the stock of this Corporation to any specified act or thing, then and in that
event any amendment, alteration, change, addition to or repeal of any such
provision shall require the written consent or affirmative vote of the holders
of said designated proportion of the stock of this Corporation.
WE, THE UNDERSIGNED, being each of the original subscribers to the capital
stock hereinbefore named for the purpose of forming a corporation to do business
both within and without the State of Delaware, and in pursuance of the General
Corporation Law of the State of Delaware, being Chapter 65 of the Revised Code
of Delaware, and the acts amendatory thereof and supplemental thereto, do make
and file this certificate, hereby declaring and certifying that the facts herein
stated are true, and do respectively agree to take the number of shares of stock
hereinbefore set forth, and accordingly have hereunto set our hands and seals
this 7th day of November A.D. 1927.
/s/ T.L. Croteau
/s/ T.L. Fray
/s/ Alfred Jervis
In presence of
/s/ Albert L. Miller
-15-
STATE OF DELAWARE )
) SS.:
COUNTY OF NEW CASTLE )
BE IT REMEMBERED that on this 7th day of December, A.D. 1927, personally
came before me, Albert L. Miller, a Notary Public for the State of Delaware,
T.L. Croteau, T.L. Fray and Alfred Jervis, parties to the foregoing certificate
of incorporation, known to me personally to be such, and severally acknowledged
the said certificate to be the act and deed of the signers respectively and that
the facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ Albert L. Miller
Notary Public
IN THE MATTER OF CERTIFICATE OF OWNERSHIP AND MERGER
WENATCHEE-BEEBE ORCHARD IN WENATCHEE-BEEBE ORCHARD
COMPANY, A DELAWARE COMPANY
CORPORATION
Pursuant to the provisions and requirements of Sec. 59-A of the General
Corporation Law of the State of Delaware, we, Ralph M. Belyea, President, and
Thos. H. Ray, Secretary, of Wenatchee-Beebe Orchard Company, a corporation
organized and existing under the laws of the State of Delaware, hereby certify:
(1) That said WENATCHEE-BEEBE ORCHARD COMPANY is the owner of all the
stock of BEEBE COLD STORAGE, INC., a corporation organized and existing under
the laws of the State of Washington;
(2) That at a meeting of the Board of Directors of said WENATCHEE-BEEBE
ORCHARD COMPANY, dully called and held on June 23, 1943, the following
resolution of Merger was unanimously adopted:
"Resolved that WENATCHEE-BEEBE ORCHARD COMPANY effect a Merger with it of
its wholly-owned subsidiary company, BEEBE COLD STORAGE, INC., a corporation
organized and existing under the laws of the State of Washington; that said
WENATCHEE-BEEBE ORCHARD COMPANY assume all the obligations of said BEEBE COLD
STORAGE, INC.; that the Capital Stock of said BEEBE GOLD STORAGE, INC.,
consisting of two thousand (2,000) shares being all of its issued and
outstanding Capital Stock now held by said WENATCHEE-BEEBE ORCHARD COMPANY, be
surrendered for cancellation and that Ralph M. Belyea, President, and Thos. H.
Ray, Secretary, be and hereby are authorized and instructed to sign in the name
of the Corporation and under its corporate seal a Certificate of
Ownership, to be filed in the office of the Secretary of State of the State of
Delaware in accordance with provisions of the General Corporation Law of the
State of Delaware;"
(3) That the requirements of the laws of the State of Washington
pertaining to the merger of corporations organized under the laws of the state
with corporations organized under the laws of a different state have been fully
complied with, and all proceedings required under the laws of the State of
Washington have been had;
(4) That the WENATCHEE-BEESE ORCHARD COMPANY, a Delaware Corporation, is,
pursuant to said proceedings referred to in this certificate, the owner of all
of the assets heretofore owned by the BEESE COLD STORAGE, INC. and has assumed
all the liabilities and obligations of the BEESE COLD STORAGE, INC. in the same
manner as if it had itself incurred such liabilities and obligations.
DATED this 23rd day of June, 1943.
WENATCHEE-BEEBE ORCHARD COMPANY
/s/ Ralph M. Belyea
--------------------------------
President
/s/ Thos. H. Ray
--------------------------------
Secretary
Certificate of Amendment of Certificate of Incorporation
of
Wenatchee -Beebe Orchard Company
---------------------------
It is hereby certified that:
1. The name of the corporation (hereinafter called the "corporation") is
WENATCHEE-BEEBE ORCHARD COMPANY
2. The certificate of incorporation of the corporation is hereby amended
by striking out Article FIRST thereof and by substituting in lieu of said
Article the following new Article:
"FIRST: The name of the corporation is Beebe Orchard Company."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
Signed and attested to on April 20th, 1983.
/s/ George H. Taber
---------------------------
George H. Taber, President
Attest:
/s/ John C. Emery
---------------------------
John C. Emery, Secretary
CERTIFICATE OF MERGER
OF
WELLS AND WADE FRUIT COMPANY
AND
BEEBE ORCHARD COMPANY
It is hereby certified that:
1. The constituent business corporations participating in the merger
herein certified are:
(i) Wells and Wade Fruit Company, which is incorporated under
the laws of the State of Washington; and
(ii) Beebe Orchard Company, which is incorporated under the
laws of the State of Delaware.
2. An Agreement of Merger has been approved, adopted, certified, executed,
and acknowledged by each of the aforesaid constituent corporations in accordance
with the provisions of subsection (c) of Section 252 of the General Corporation
Law of the State of Delaware, to wit, by Wells and Wade Fruit Company in
accordance with the laws of the State of its incorporation and by Beebe Orchard
Company in the same manner as is provided in Section 251 of the General
Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein certified is
Beebe Orchard Company, which will continue its existence as said surviving
corporation under the name DOLE NORTHWEST, INC. upon the effective date of said
merger pursuant to the provisions of the General Corporation Law of the State of
Delaware.
4. The Certificate of Incorporation of Beebe Orchard Company is to be
amended and changed by reason of the merger herein certified by striking out
Article First, relating to the name, and by substituting in lieu thereof the
following article:
"The name of the corporation is Dole Northwest, Inc."
and said Certificate of Incorporation as so amended and changed shall continue
to be the Certificate of Incorporation of said surviving corporation until
further amended and changed in accordance with the provisions of the General
Corporation Law of the State of Delaware.
5. The executed Agreement of Merger between the aforesaid constituent
corporation is on file at an office of the aforesaid surviving corporation, the
address of which is as follows: One Dole Drive, Westlake Village, California
91362.
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6. A copy of the aforesaid Agreement of Merger will be furnished by the
aforesaid surviving corporation, on request, and without cost, to any
stockholder of each of the aforesaid constituent corporations.
7. The authorized capital stock of Wells and Wade Fruit Company consists
of one (1) share with a par value of $.01 per share.
8. The Agreement of Merger between the aforesaid constituent corporations
provides that the merger herein certified shall be effective on April 2, 2001.
Dated: March 23, 2001
WELLS AND WADE FRUIT COMPANY
By: /s/ Janice M. Nicols
-------------------------------
Name: Janice M. Nicols
Its: Assistant Secretary
Dated: March 23, 2001.
BEEBE ORCHARD COMPANY
By: /s/ Janice M. Nicols
-------------------------------
Name: Janice M. Nicols
Its: Assistant Secretary
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| Filed on: | | 6/25/03 | | | | | | | S-4 |
| | 4/2/01 | | 21 |
| | 3/23/01 | | 21 |
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