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(BA) — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.1(BA)
ARTICLES OF INCORPORATION
OF
M K DEVELOPMENT, INC.
THESE ARTICLES OF INCORPORATION, made and entered into by the
undersigned,
WITNESSETH:
That the undersigned, desiring to become incorporated as a
corporation in accordance with the laws of the State of Hawaii, and to obtain
the rights and benefits conferred by said laws upon corporations, does hereby
form a corporation, and does make and enter into the following Articles of
Incorporation, the terms whereof it is agreed shall be equally obligatory upon
the undersigned and upon all the parties who from time to time may hold stock in
the corporation.
ARTICLE I
NAME
The name of the corporation shall be:
M K DEVELOPMENT, INC.
ARTICLE II
OFFICES
The location of the principal office of the corporation shall
be in the City of Honolulu, State of Hawaii, and the street and mailing address
of the initial principal office of the
corporation shall be 650 Iwilei Road, Honolulu, Hawaii 96817. The corporation
may have such other offices within and without the State of Hawaii as its
business may from time to time require.
ARTICLE III
CAPITAL STOCK
The number of shares of stock that the corporation is
authorized to issue shall be 1,000 shares of stock, without par value, all of
said stock being of the same class.
The Board of Directors may determine that a portion of any
consideration received by the corporation for the issuance of shares of stock of
the corporation shall be treated as paid-in surplus and that the remainder of
such consideration shall constitute capital of the corporation.
ARTICLE IV
INITIAL DIRECTORS AND OFFICERS, SUBSCRIBERS
A. The number of directors constituting the initial board of
directors shall be four. The names and residence addresses of the persons who
are to act as the initial directors and officers of the corporation until the
first annual meeting of shareholders and thereafter until their successors are
elected and qualified are as follows:
Directors
Names Residence Addresses
Bill Mills 1302 Nehoa Street
Honolulu, HI 96822
William H. Frank 24358 Dina Court
Calabasas, CA 91302
2
Raymond F. Henze III 525 Arroyo Square
South Pasadena, CA 91030
George Yim 2445 Ferdinand Avenue
Honolulu, HI 96822
Officers
Names and Offices Held Residence Addresses
Bill Mills, President 1302 Nehoa Street
Honolulu, HI 96822
William H. Frank 24358 Dina Court
Vice President Calabasas, CA 91302
David B. Cooper, Jr. 1530 N. Curson Avenue
Vice President Los Angeles, CA 90046
and Treasurer
Alan B. Sellers 2047 Desford Drive
Secretary Beverly Hills, CA 90210
George Yim 2445 Ferdinand Avenue
Honolulu, HI 96822
David W. Perrigo 23036 Cass Avenue
Assistant Treasurer Woodland Hills, CA 91364
B. The name of the subscriber for shares, the number of shares
subscribed for, the subscription price of the stock subscribed for and the
amount of capital paid in cash by the sole subscriber are as follows:
[Download Table]
Subscription Price Amount of Capital
No. of Shares For the Shares Paid In Cash By the
Name Subscribed For Subscribed For Sole Subscriber
---- -------------- ------------------ -------------------
Castle & Cooke, Inc. 1,000 $1,000 $1,000
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ARTICLE V
PURPOSES AND POWERS
The corporation is organized for the following purposes:
(1) To acquire, own, improve, develop and sell, lease or
otherwise dispose of and in all respects deal with real property, improved or
unimproved, and any interests and rights therein; and
(2) To transact any or all lawful business for which
corporations may be incorporated under the Hawaii Business Corporation Act
(chapter 415, Hawaii Revised Statutes) or any future similar law.
The corporation shall have and possess all the powers
permitted to corporations incorporated under said Hawaii Business Corporation
Act or any future similar law.
ARTICLE VI
BOARD OF DIRECTORS
If the corporation has only one shareholder, the Board of
Directors shall have one or more directors. If the corporation has two
shareholders, the Board of Directors shall have two or more directors. If the
corporation has three or more shareholders, the Board of Directors shall have at
least three directors. At least one member of the Board of Directors shall be a
resident of the State of Hawaii, and in the absence of such one member, the
Board of Directors shall not function, except to elect a new director who is a
resident of the State of Hawaii.
The members of the Board of Directors shall be elected or
appointed at such times, in such manner and for such terms as may be prescribed
by the By-Laws, which also may provide for the removal of directors and the
filling of vacancies and may provide that the remaining members of the Board of
Directors, although less than a quorum thereof, may by the
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affirmative vote of the majority of such remaining members fill vacancies in the
Board of Directors. The directors need not be shareholders of the corporation.
The Board of Directors shall have full power to control and
direct the business and affairs of the corporation, subject, however, to
resolutions adopted by the shareholders and to any limitations which may be set
forth in statutory provisions, in these Articles or in the By-Laws. The Board of
Directors, without the approval of the shareholders of the corporation, or of
any percentage thereof, may authorize the borrowing of money or the incurring of
debts, even though as a result thereof the amount of the corporation's
indebtedness may exceed its capital stock.
ARTICLE VII
OFFICERS
The officers of the corporation shall consist of a President,
one or more Vice Presidents as may be prescribed by the By-Laws, a Secretary, an
Assistant Secretary, a Treasurer, an Assistant Treasurer and such other officers
and assistant officers and agents as may be prescribed by the By-Laws. The
officers shall be elected or appointed, hold office and may be removed as may be
prescribed by the By-Laws. No officer need be a shareholder of the corporation.
Any two or more offices may be held by the same person, provided, however, that
at least two persons shall be officers.
All officers and agents of the corporation, as between
themselves and the corporation, shall have such authority and perform such
duties in the management of the corporation as may be prescribed by the By-Laws,
or as may be determined by resolution of the Board of Directors not inconsistent
with the By-Laws.
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ARTICLE VIII
INDEMNITY
(1) The corporation shall indemnify each person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of this corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of this corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the conduct
of such person was unlawful.
(2) The corporation shall indemnify each person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director or officer of another corporation, partnership,
joint venture, trust or
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other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of this
corporation. Notwithstanding the foregoing, no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of such
person's duty to this corporation unless and only to the extent that the court
in which such action or suit was brought or any other court having jurisdiction
in the premises shall determine upon application that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(3) To the extent that a director or officer of the
corporation or a person serving at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraph (1) or paragraph (2) of this
Article, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(4) Any indemnification under paragraph (1) or paragraph (2)
of this Article shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraph (1) or paragraph (2). Such
determination shall be made (a) by the Board of Directors by a majority vote of
a quorum
7
consisting of directors who were not parties to such action, suit or proceeding,
or (b) if such a quorum is not obtainable, by independent legal counsel in a
written opinion to the corporation, or (c) by a majority vote of the
shareholders, or (d) by the court in which such action, suit or proceeding was
pending upon application made by this corporation or the person seeking
indemnification or the attorney or other person rendering services in connection
with the defense, whether or not such application is opposed by this
corporation.
(5) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in a particular case upon receipt of an undertaking by or on behalf of
the director or officer to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the corporation as
authorized in this Article.
(6) Any indemnification pursuant to this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in a person's 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 or officer and shall inure to the
benefit of the heirs, executors and administrators of such person.
(7) The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director or officer
of the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity or arising out of the status of such
8
person as such, whether or not the corporation would have the power to indemnify
such person against such liability under the provisions of this Article.
ARTICLE IX
BY-LAWS
The initial By-Laws of the corporation shall be adopted by its
Board of Directors. The power to alter, amend or repeal the By-Laws or adopt new
By-Laws, subject to repeal or change by action of the shareholders, shall be
vested in the Board of Directors.
ARTICLE X
AMENDMENT
These Articles may be amended from time to time in the manner
provided by law.
ARTICLE XI
DURATION
The corporation shall exist in perpetuity.
I certify under the penalties of Section 415-136, Hawaii
Revised Statutes, that I have read the above statements and that the same are
true and correct.
Witness my hand this 26th day of February , 1988.
/s/ Hugh Shearer
-----------------------------------
Hugh Shearer
Incorporator
9
STATE OF HAWAII
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
BUSINESS REGISTRATION DIVISION
1010 RICHARDS STREET
HONOLULU, HAWAII 96813
In the Matter of the Amendment )
of the Articles of Incorporation )
)
of )
)
M K Development, Inc. )
ARTICLES OF AMENDMENT
The undersigned, duly authorized officers of M K DEVELOPMENT,
INC., a Hawaii corporation, hereby certify as follows:
1. The name of the corporation is M K DEVELOPMENT, INC.
2. The amendment adopted is attached hereto as Exhibit A.
3. The total number of shares outstanding is 1,000 shares of
common stock.
4. The amendment was adopted by written consent of the sole
shareholder of the corporation dated November 14, 1990.
5. The amendment does not provide for any exchange,
reclassification, or cancellation of issued shares.
6. The amendment does not change the stated capital of the
corporation.
7. The written notice of the amendment required by Section
415-48.5 of the Hawaii Revised Statutes is attached hereto as Exhibit B.
We certify under penalties of Section 415-136, Hawaii Revised
Statutes, that we have read the above statements and that the same are true and
correct.
WITNESS our hands this 26th day of November, 1990.
/s/ George Yim /s/ Kevin R. Shaney
------------------------------------ -----------------------------------
George Yim Kevin R. Shaney
Vice President Secretary
M K Development, Inc. M K Development, Inc.
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EXHIBIT A
M K DEVELOPMENT, INC.
AMENDMENT TO ARTICLES OF INCORPORATION
The Articles of Incorporation of M K DEVELOPMENT, INC., a
Hawaii corporation, are hereby amended as follows:
1. By adding a new Article to be designated and located
appropriately and to read in its entirety as follows:
"ARTICLE XII
LIMITATION OF LIABILITY OF DIRECTORS
The personal liability of directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
Hawaii law including, without limitation, to the fullest extent permissible
under Section 415-48.5 of the Hawaii Revised Statutes, as amended from time to
time. No repeal or amendment of this Article directly or by adoption of an
inconsistent provision of these articles of incorporation or the corporation's
by-laws will be effective with respect to the liability of a director for acts
or omissions occurring prior to such repeal or amendment or adversely affect the
rights and protection afforded to a director of the corporation under this
Article for acts or omissions which occur prior to such repeal or amendment."
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