Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
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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
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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
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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
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14: EX-3.1(M) Articles of Incorporation/Organization or By-Laws 3 27K
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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(AU) — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.1(AU)
ARTICLES OF INCORPORATION
OF
DOLE ACQUISITION CORPORATION
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:
DOLE ACQUISITION CORPORATION
ARTICLE II
OFFICES
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
A. The number of shares of stock that the corporation is
authorized to issue shall be 1,000,000 shares of stock, without par value, all
of said stock being of the same class.
B. 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
The number of directors constituting the initial board of
directors shall be three (3) . 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
David H. Murdock 10900 Wilshire Boulevard
Los Angeles, CA 90024
Thomas C. Leppert 983 Makaiwa Street
Honolulu, HI 96816
Michael S. Karsner 1800 Upper Ranch Road
Westlake Village, CA 91362
2
Officers
--------
Names and Offices Held Residence Addresses
David H. Murdock 10900 Wilshire Boulevard
Chairman of the Board Los Angeles, CA 90024
and Chief Executive Officer
Thomas C. Leppert 983 Makaiwa Street
President Honolulu, HI 96816
Patricia A. McKay 29756 Kimberly Drive
Vice President Agoura Hills, CA 90046
J. Brett Tibbitts 6318 Greentree Drive
Secretary Somis, CA 93066
Theresa L. Hoover 8630 Lookout Mountain
Assistant Secretary Los Angeles, CA 90046
Michael S. Karsner 1800 Upper Ranch Road
Treasurer Westlake Village, CA 91362
ARTICLE V
PURPOSES AND POWERS
A. The corporation is organized for the following purposes:
(1) To own and deal in property; 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.
B. The corporation shall have and possess all the powers
permitted to corporations incorporated under said Hawaii Business Corporation
Act or any future similar law.
3
ARTICLE VI
BOARD OF DIRECTORS
A. 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.
B. 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 Bylaws, 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 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.
C. 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 Bylaws. 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.
4
ARTICLE VII
OFFICERS
A. The officers of the corporation shall consist of a Chairman
of the Board, President, one or more Vice Presidents as may be prescribed by the
Bylaws, a Secretary, a Treasurer and such other officers and assistant officers
and agents as may be prescribed by the Bylaws. The officers shall be elected or
appointed, hold office and may be removed as may be prescribed by the Bylaws. No
officer need be a shareholder of the corporation. Any two or more offices may be
held by the same individual; provided that if there are two or more directors
there shall be at least two individuals as officers.
B. 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 Bylaws,
or as may be determined by resolution of the Board of Directors not inconsistent
with the Bylaws.
ARTICLE VIII
INDEMNITY
A. 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
5
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.
B. 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 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
6
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
C. 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 A or paragraph B 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.
D. Any indemnification under paragraph A or paragraph B 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 A or paragraph B. Such determination shall be
made (1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such a quorum is not obtainable, by independent legal counsel in a written
opinion to the corporation, or (3) by a majority vote of the shareholders, or
(4) 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.
E. The corporation shall pay in advance of the final
disposition of any action, suit or proceeding for the expenses incurred by a
director of the corporation in his or her capacity as a director in defending
such action, suit or proceeding; provided that the director delivers to
7
the corporation a written undertaking to repay such amount unless it is
ultimately determined that the director is entitled to be indemnified under this
Article. The board of directors may authorize payment in advance of the final
disposition of an action, suit or proceeding for the expenses incurred by an
agent (other than a director) seeking indemnification under paragraph A or
paragraph B of this Article; provided that the agent delivers to the corporation
a written undertaking to repay such amount unless it is ultimately determined
that the agent is entitled to be indemnified under this Article.
F. 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.
G. 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 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.
8
ARTICLE IX
BYLAWS
The initial Bylaws of the corporation shall be adopted by its
Board of Directors. The power to alter, amend or repeal the Bylaws or adopt new
Bylaws, 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 13th day of October, 1994.
/s/ Hugh Shearer
---------------------------------
Name: Hugh Shearer
Incorporator
9
NONREFUNDABLE FILING FEE: $25.00 DOMESTIC PROFIT
SUBMIT ORIGINAL AND ONE TRUE COPY NAME CHANGE ONLY
STATE OF HAWAII
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
Business Registration Division
1010 Richards Street
Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810
ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME
(Section 415-61, Hawaii Revised Statutes)
The undersigned, duly authorized officers of the corporation
submitting these Articles of Amendment, certify as follows:
1. The present name of the corporation is:
Dole Acquisition Corporation
----------------------------------------------------------------------
2. The name of the corporation is changed to:
Castle & Cooke Homes, Inc.
----------------------------------------------------------------------
3. Total number of shares outstanding is: 1,000,000
----------------------------------------------------------------------
4. IF ADOPTION OF THE AMENDMENT TO CHANGE THE CORPORATE NAME WAS AT A
MEETING, COMPLETE THE FOLLOWING:
The meeting of the shareholders was held on __________________________
(Month Day Year)
[Enlarge/Download Table]
Number Voting Number Voting
Class/Series For Amendment Against Amendment
------------------------------------- ----------------------------------- -----------------------------------
5. IF ADOPTION OF THE AMENDMENT TO CHANGE THE CORPORATE NAME WAS BY
UNANIMOUS WRITTEN CONSENT OF THE SHAREHOLDERS, COMPLETE THE FOLLOWING:
By written consent dated January 10, 1995
---------------------------------------------
(Month Day Year)
the shareholders unanimously adopted the amendment to change the
corporate name.
We certify under the 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 10th day of January , 1995.
------ ------------------------- --
[Enlarge/Download Table]
Patricia A. McKay, Vice President J. Brett Tibbitts, Secretary
--------------------------------------------------------- ---------------------------------------------------------
(Type/Print Name & Title) (Type/Print Name & Title)
/s/ Patricia A. McKay /s/ J. Brett Tibbitts
--------------------------------------------------------- ---------------------------------------------------------
(Signature of Officer) (Signature of Officer)
(SEE REVERSE SIDE FOR INSTRUCTIONS)
EXHIBIT A
DOLE ACQUISITION CORPORATION
AMENDMENT TO ARTICLES OF INCORPORATION
The Articles of Incorporation of DOLE ACQUISITION CORPORATION,
a Hawaii corporation, are hereby amended by adding to the end thereof a new
Article XII, to read in its entirety as follows:
"ARTICLE XII
LIMITATION OF LIABILITY OF DIRECTORS
The liability of directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under Hawaii law
(including, without limitation, Section 415-48.5 of the Hawaii Revised Statutes,
as the same may be amended from time to time)."
End of Exhibit A
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NONREFUNDABLE FILING FEE: $25.00 DOMESTIC PROFIT
SUBMIT ORIGINAL AND ONE TRUE COPY NAME CHANGE ONLY
STATE OF HAWAII
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
Business Registration Division
1010 Richards Street
Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810
ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME
(Section 415-61, Hawaii Revised Statutes)
The undersigned, duly authorized officers of the corporation
submitting these Articles of Amendment, certify as follows:
1. The present name of the corporation is:
CASTLE & COOKE HOMES, INC.
----------------------------------------------------------------------
2. The name of the corporation is changed to:
CERULEAN, INC.
----------------------------------------------------------------------
3. Total number of shares outstanding is: 1,000,000
------------------------------
4. IF ADOPTION OF THE AMENDMENT TO CHANGE THE CORPORATE NAME WAS AT A
MEETING, COMPLETE THE FOLLOWING:
The meeting of the shareholders was held on __________________________
(Month Day Year)
[Enlarge/Download Table]
Number of Shares Voting Number of Shares Voting
Class/Series For Amendment Against Amendment
------------------------------------- ----------------------- -----------------------
5. IF ADOPTION OF THE AMENDMENT TO CHANGE THE CORPORATE NAME WAS BY
UNANIMOUS WRITTEN CONSENT OF THE SHAREHOLDERS, COMPLETE THE FOLLOWING:
By written consent dated March 15, 1996
--------------------------------------------
(Month Day Year)
the shareholders unanimously adopted the amendment to change the
corporate name.
We certify under the 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 18th day of March , 1996.
------ ------------------------ --
[Enlarge/Download Table]
Patricia A. McKay, Vice President Theresa L. Hoover, Asst. Secretary
--------------------------------------------------------- ---------------------------------------------------------
(Type/Print Name & Title) (Type/Print Name & Title)
/s/ Patricia A. McKay /s/ Theresa L. Hoover
--------------------------------------------------------- ---------------------------------------------------------
(Signature of Officer) (Signature of Officer)
(SEE REVERSE SIDE FOR INSTRUCTIONS)
Dates Referenced Herein and Documents Incorporated by Reference
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| | 1/10/95 | | 10 |
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