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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HAWAIIAN AIRLINES, INC.
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(Exact Name of Registrant as Specified in its Charter)
HAWAII 99-0042880
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(State of Incorporation or Organization) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819
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(Address of principal executive offices) (ZIP CODE)
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A(c)(1) please
check the following box. / /
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant
to General Instruction A(c)(2) please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, American Stock Exchange
par value $.01 per share Pacific Stock Exchange
Preferred Stock Purchase Rights American Stock Exchange
Pacific Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
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EXPLANATORY NOTE.
On June 20, 1995, the Securities and Exchange Commission declared
Hawaiian Airlines, Inc.'s (the "Company") Registration Statement on Form 8-A
(the "Registration Statement") effective. The Registration Statement registered
Class A Common Stock and Preferred Stock Purchase Rights which attach to shares
of Class A Common Stock. At the Company's Annual Meeting of Shareholders on
June 6, 1996, the shareholders of the Company approved amendments to the
Company's Amended Articles of Incorporation which designated the Class A Common
Stock as "Common Stock". The rights of holders of Class A Common Stock and
holders of Common Stock are the same. Through the amendments to the Amended
Articles of Incorporation, the Preferred Stock Purchase Rights attach to each
share of Common Stock. The Company is therefore filing this amendment to its
Registration Statement solely to reflect the change in the name of its Class A
Common Stock to Common Stock. All other rights of the holders of Class A
Common Stock and the Preferred Stock Purchase Rights remain the same except in
name.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
(a) COMMON STOCK.
The Company amends it Registration Statement on Form 8-A to apply
for registration of its Common Stock, par value $.01 per share (the "Common
Stock"). The Company is authorized to issue sixty million (60,000,000) shares
of Common Stock.
No shares of the Common Stock are held by or for the account of the
Company, except that it may be necessary for the Company to withhold and sell
some of the shares which would otherwise be distributed to certain terminated
employees of the Company under the Company's Third Amended Consolidated Plan of
Reorganization dated August 29, 1994, as amended, in order to generate funds
necessary for the Company to pay withholding taxes as a result of such
distribution.
Stock and cash dividends may be paid to the holders of the Common
Stock as and when declared by the Board of Directors of the Company, provided
that, after giving effect thereto, the Company is able to pay its debts as they
become due in the usual course of its business and the Company's total assets
are not less than the sum of its total liabilities plus the maximum amount that
would be payable in any liquidation in respect to all outstanding shares having
preferential rights in liquidation. All shares of Common Stock will rank
equally in the event of liquidation.
Holders of stock having voting rights on the matter in question are
entitled to one vote per share. At annual and special meetings of shareholders,
a majority in voting interest of the shares of stock of the Company entitled to
vote shall constitute a quorum and a majority of such a quorum so present shall
be sufficient to approve any action, except as otherwise required by law.
Holders of Common Stock have no cumulative voting rights and no
preemptive or preferential right to purchase securities of the Company unless
such rights are specifically granted by the Board of Directors and no such
rights currently exist. There are no redemption, sinking fund or conversion
rights applicable to the Common Stock.
The Company has submitted a Substitution Listing Application to the
American Stock Exchange and Pacific Stock Exchange for approval of the
designation of Class A Common Stock as "Common Stock".
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(b) PREFERRED SHARE PURCHASE RIGHTS.
The Company amends its Registration Statement on Form 8-A to apply for
registration of its Preferred Stock Purchase Rights. On December 1, 1994 (the
"Record Date"), the Board of Directors authorized adoption of a shareholder
rights plan pursuant to which one preferred stock purchase right (a "Right")
will be attached to each share of common stock, par value $.01 per share, of the
Company (the "Common Stock").
The following is a brief description of the Rights. It is intended to
provide a general description only and is subject to the detailed terms and
conditions of a Rights Agreement (the "Rights Agreement") dated as of December
23, 1994, as amended, by and between the Company and Chemical Trust Company of
California as Rights Agent (the "Rights Agent").
1. COMMON STOCK CERTIFICATES REPRESENTING RIGHTS
Until the Distribution Date (as defined in Section 2 below), (a) the
Rights shall not be exercisable, (b) the Rights shall be attached to and trade
only together with the Common Stock and (c) the stock certificates representing
Common Stock shall also represent the Rights attached to such Common Stock.
Common Stock certificates issued after the Record Date and prior to the
Distribution Date shall contain a notation incorporating the Rights Agreement by
reference.
2. DISTRIBUTION DATE
The "Distribution Date" is the earliest of (a) the tenth business day
following the date of the first public announcement that any person (other than
the Company or certain related entities, and with certain additional exceptions)
has become the beneficial owner of 10% or more of the then outstanding Common
Stock (such person is a "10% Shareholder" and the date of such public
announcement is the "10% Ownership Date"), (b) the tenth business day (or such
later day as shall be designated by the Board of Directors) following the date
of the commencement of, or the announcement of an intention to make, a tender
offer or exchange offer, the consummation of which would cause any person to
become a 10% Shareholder or (c) the first date, on or after the 10% Ownership
Date, upon which the Company is acquired in a merger or other business
combination in which the Company is not the surviving corporation or in which
the outstanding Common Stock are changed into or exchanged for stock or assets
of another person, or upon which 50% or more of the Company's consolidated
assets or earning power are sold (other than in transactions in the ordinary
course of business). In calculating the percentage of outstanding Common Stock
that are beneficially owned by any person, such person shall be deemed to
beneficially own any Common Stock issuable upon the exercise, exchange or
conversion of any options, warrants or other securities beneficially owned by
such person; provided, however, that such Common Stock issuable upon such
exercise shall not be deemed outstanding for the purpose of calculating the
percentage of Common Stock that are beneficially owned by any other person.
Notwithstanding the foregoing, no person shall be deemed a "10% Shareholder"
until such person becomes the beneficial owner of a percentage of the then
outstanding Common Stock that is at least 1% more than the percentage of the
outstanding Common Stock beneficially owned by such person solely as a result of
distributions pursuant to the Plan. Further, if such a "grandfathered" holder
transfers the shares it received pursuant to the Plan, the direct transferee
shall not be deemed to be a "10% Stockholder" unless as a result of another
acquisition, theretofore or thereafter consummated, such transferee becomes the
beneficial owner of at least 1% more than the percentage of outstanding Common
Stock transferred to the transferee by such "grandfathered" holder. In
addition, if any person becomes the beneficial owner of at least 10% of the then
outstanding Common Stock as a result of any
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increase in the number of shares of Common Stock issuable upon the exercise,
exchange or conversion of outstanding securities, or any decrease in the
number of outstanding Common Stock resulting from any stock repurchase plan
or self tender offer of the Company, then such person shall not be deemed a
"10% Shareholder" until such person thereafter acquires beneficial ownership
of, in the aggregate, a number of additional Common Stock equal to 1% or more
of the then outstanding Common Stock.
Upon the close of business on the Distribution Date, the Rights shall
separate from the Common Stock, Right certificates shall be issued and the
Rights shall become exercisable to purchase Preferred Stock as described in
Section 5 below.
3. ISSUANCE OF RIGHT CERTIFICATES
As soon as practicable following the Distribution Date, separate
certificates representing only Rights shall be mailed to the holders of record
of Common Stock as of the close of business on the Distribution Date, and such
separate Right certificates alone shall represent such Rights from and after the
Distribution Date.
4. EXPIRATION OF RIGHTS
The Rights shall expire on December 1, 2004 unless earlier redeemed or
exchanged, unless the Distribution Date has previously occurred and the Rights
have separated from the Common Stock, in which case the Rights will remain
outstanding for ten years.
5. EXERCISE OF RIGHTS
Unless the Rights have expired or been redeemed or exchanged, they may
be exercised, at the option of the holders, pursuant to paragraphs (a), (b) or
(c) below. No Right may be exercised more than once or pursuant to more than
one of such paragraphs. From and after the first event of the type described in
paragraphs (b) or (c) below, each Right that is beneficially owned by a 10%
Shareholder or that was attached to a share of Common Stock that is subject to
an option beneficially owned by a 10% Shareholder shall be void.
(a) RIGHT TO PURCHASE PREFERRED STOCK. From and after the close of
business on the Distribution Date, each Right (other than a Right that has
become void) shall be exercisable to purchase one one-thousandth of a share of
Series A Junior Participating Cumulative Preferred Stock, par value $1.00 per
share, of the Company (the "Preferred Stock"), at an exercise price of $8.00
(the "Exercise Price"). Prior to the Distribution Date, the Company may
substitute for all or any portion of the Preferred Stock that would otherwise be
issuable upon exercise of the Rights, cash, assets or other securities having
the same aggregate value as such Preferred Stock. The shares of Preferred Stock
are nonredeemable and, unless otherwise provided in connection with the creation
of a subsequent series of preferred stock, are subordinate to any other series
of the Company's preferred stock, whether issued before or after the issuance of
the Preferred Stock. The Preferred Stock may not be issued except upon exercise
of Rights. The holder of a share of Preferred Stock is entitled to receive
when, as and if declared, the greater of (i) cash and non-cash dividends in an
amount equal to 1,000 times the dividends declared on each share of Common Stock
or (ii) a preferential annual dividend of $1.00 per share of Preferred Stock
($.001 per one one-thousandth of a share of Preferred Stock). In the event of
liquidation, the holders of a share of Preferred Stock shall be entitled to
receive a liquidation payment in an amount equal to the greater of (1) $1.00 per
share of Preferred Stock ($.001 per one one-thousandth of a Share of Preferred
Stock), plus all accrued and unpaid dividends and distributions on the shares of
Preferred Stock, or (2) an amount equal to 1,000 times the aggregate amount to
be distributed per Common Share. Each share of Preferred Stock has 1,000 votes,
voting together with the
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Common Stock. In the event of any merger, consolidation or other transaction
in which Common Stock are exchanged, the holder of a share of Preferred Stock
shall be entitled to receive 1,000 times the amount received per share of
Common Stock. The rights of the Preferred Stock as to dividends, voting and
liquidation preferences are protected by antidilution provisions. It is
anticipated that the value of one one-thousandth of a share of Preferred
Stock should approximate the value of one share of Common Stock.
(b) RIGHT TO PURCHASE COMMON STOCK OF THE COMPANY. From and
after the close of business on the tenth business day following the 10%
Ownership Date, each Right (other than a Right that has become void) shall be
exercisable to purchase, at the Exercise Price (initially $8.00), Common Stock
with a market value equal to two times the Exercise Price. If the Company does
not have sufficient Common Stock available for all Rights to be exercised, the
Company shall substitute for all or any portion of the Common Stock that would
otherwise be issuable upon the exercise of the Rights, cash, assets or other
securities having the same aggregate value as such Common Stock.
(c) RIGHT TO PURCHASE COMMON STOCK OF A SUCCESSOR CORPORATION.
If, on or after the 10% Ownership Date, (i) the Company is acquired in a merger
or other business combination in which the Company is not the surviving
corporation, (ii) the Company is the surviving corporation in a merger or other
business combination in which all or part of the outstanding Common Stock are
changed into or exchanged for stock or assets of another person or (iii) 50% or
more of the Company's consolidated assets or earning power are sold (other than
in transactions in the ordinary course of business), then each Right (other than
a Right that has become void) shall thereafter be exercisable to purchase, at
the Exercise Price (initially $8.00), shares of common stock of the surviving
corporation or purchaser, respectively, with an aggregate market value equal to
two times the Exercise Price.
6. ADJUSTMENTS TO PREVENT DILUTION
The Exercise Price, the number of outstanding Rights and the number of
shares of Preferred Stock or Common Stock issuable upon exercise of the Rights
are subject to adjustment from time to time as set forth in the Rights Agreement
in order to prevent dilution.
7. CASH PAID INSTEAD OF ISSUING FRACTIONAL SECURITIES
With certain exceptions, no adjustment in the Exercise Price shall be
required until cumulative adjustments require an adjustment of at least 1%. No
fractional securities shall be issued upon exercise of a Right (other than
fractions of Preferred Shares that are integral multiples of one one-thousandth
of a Preferred Share and that may, at the election of the Company, be evidenced
by depository receipts) and in lieu thereof, an adjustment in cash shall be made
based on the market price of such securities on the last trading date prior to
the date of exercise.
8. REDEMPTION
At any time prior to the earlier of (a) the tenth business day (or
such later day as shall be designated by the Board of Directors) following the
date of the commencement of, or the announcement of an intention to make, a
tender offer or exchange offer, the consummation of which would cause any person
to become a 10% Shareholder, (b) the 10% Ownership Date or (c) the first event
of the type giving rise to exercise rights under Section 5(c) above, the members
of the Board of Directors serving prior to the date of the event triggering the
Rghts may, at their option, direct the Company to redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption Price"), and the
Company shall so redeem the Rights. Immediately upon such action by such
members of the Board of Directors (the date of
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such action is the "Redemption Date"), the right to exercise Rights shall
terminate and the only right of the holders of Rights thereafter shall be to
receive the Redemption Price.
9. EXCHANGE
At any time after the 10% Ownership Date and prior to the first date
thereafter upon which a 10% Shareholder shall be the beneficial owner of 50% or
more of the outstanding Common Stock, the Board of Directors may, at its option,
direct the Company to exchange all, but not less than all, of the then
outstanding Rights for Common Stock at an exchange ratio per Right equal to that
number of shares of Common Stock which, as of the date of the Board of
Directors' action, has a current market price equal to the difference between
the Exercise Price and the current market price of the shares that would
otherwise be issuable upon exercise of a Right on such date (the "Exchange
Ratio"), and the Company shall so exchange the Rights. Immediately upon such
action by the Board of Directors, the right to exercise Rights shall terminate
and the only right of the holders of Rights thereafter shall be to receive a
number of shares of Common Stock equal to the Exchange Ratio.
10. NO SHAREHOLDER RIGHTS PRIOR TO EXERCISE
Until a Right is exercised, the holder thereof, as such, shall have no
rights as a Shareholder of the Company (other than rights resulting from such
holder's ownership of Common Stock), including, without limitation, the right to
vote or to receive dividends.
11. AMENDMENT OF RIGHTS AGREEMENT
The Board of Directors may, from time to time, without the approval of
any holder of Rights, direct the Company and the Rights Agent to supplement or
amend any provision of the Rights Agreement in any manner, whether or not such
supplement or amendment is adverse to any holder of Rights, and the Company and
the Rights Agent shall so supplement or amend such provision; provided, however,
that from and after the earliest of (a) the tenth business day (or such later
day as shall be designated by the Board of Directors) following the date of the
commencement of, or the announcement of an intention to make, a tender offer or
exchange offer, the consummation of which would cause any person to become a 10%
Shareholder, (b) the 10% Ownership Date, (c) the first event of the type giving
rise to exercise rights under Section 5(c) above, or (d) the Redemption Date,
the Rights Agreement shall not be supplemented or amended in any manner that
would materially and adversely affect any holder of outstanding Rights other
than a 10% Shareholder; provided, further that from and after the first date
upon which there shall exist a 10% Shareholder, the Rights Agreement shall not
be supplemented or amended in any manner without the approval of a majority of
the Company's directors who were directors prior to such date.
The Company has submitted a Substitution Listing Application to the
American Stock Exchange and Pacific Stock Exchange for approval of the
designation of the attachment of the Rights from Class A Common Stock to "Common
Stock".
ITEM 2. EXHIBITS.
The following exhibit is filed as a part of this Amendment No. 1 to
the Registration Statement:
3.1 Amended Articles of Incorporation.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
HAWAIIAN AIRLINES, INC.
Dated: June 28, 1996 By: /s/ Rae A. Capps
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Rae A. Capps
Vice President, General Counsel
and Corporate Secretary
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE NO.
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3.1 Amended Articles Of Incorporation. 9
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RESTATED
ARTICLES OF INCORPORATION
OF
HAWAIIAN AIRLINES, INC.
ARTICLE I
NAME
The name of the Corporation shall be
HAWAIIAN AIRLINES, INC.
ARTICLE II
OFFICES
The location of the principal office of the Corporation shall be in the City of
Honolulu, Island of Oahu, State of Hawaii, and the mailing address of the
principal office of the Corporation shall be 531 Ohohia Street, Honolulu, Hawaii
96819. 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
PURPOSES AND POWERS
The purpose of the Corporation is to engage in commercial air transportation and
any lawful act or activity for which Corporation may be organized under the law
of Hawaii.
ARTICLE IV
CAPITAL STOCK
A. The Corporation is authorized to issue three classes of shares of capital
stock, which shall be designated Class A Common Stock, Class B Common Stock and
Preferred Stock, respectively. The total number of shares of capital stock
which the Corporation is authorized to issue is sixty-five million fifty
thousand (65,050,000) shares.
B. (i) The total number of shares of Common Stock which the Corporation
shall have authority to issue is sixty three million fifty thousand
(63,050,000), and all such shares shall have a par value of $.01. The
Corporation shall be authorized to issue three million fifty thousand
(3,050,000) shares of Class B Common Stock and sixty million (60,000,000)
shares of Class A Common Stock. Notwithstanding the foregoing, the
Corporation shall not be authorized to have more than sixty million
(60,000,000) shares of Common Stock outstanding at any one time. Upon
conversion of shares of Class B Common Stock into Class A Common Stock, the
shares of Class B Common Stock acquired by the Corporation shall be canceled
and shall not be reissued.
(ii) No dividend shall be declared and paid with respect to Class A Common
Stock unless concurrently an equal and identical dividend is declared and paid
with respect to each share of Class B Common Stock, and no dividend shall be
declared and paid with respect to the Class B Common Stock
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unless concurrently an equal and identical dividend is declared and paid with
respect to each share of Class A Common Stock.
(iii) The Class A Common Stock shall have all the voting rights
provided under the Hawaii Business Corporation Act for voting common stock
except as otherwise provided in these Articles of Incorporation.
(iv) The Class B Common Stock shall have no right to vote on any matter at
any meeting of shareholders except (a) as required under the Hawaii Business
Corporation Act; and (b) if, notwithstanding the prohibition contained in
paragraph B(ii) of this Article IV, a dividend is declared and paid with respect
to the Class A Common Stock and an equal and identical dividend is not declared
and paid concurrently with respect to the Class B Common Stock, each share of
Class B Common Stock shall thereafter be entitled to vote in the election of
directors as if it were a share of Class A Common Stock. The foregoing clause
(b) shall not be deemed to limit the remedies available to a holder of Class B
Common Stock for a violation of the provisions of paragraph B(ii) of this
Article IV.
(v) The ownership or control of more than twenty-five percent (25%) of the
issued and outstanding voting capital stock of the Corporation by persons who
are not "citizens of the United States" as defined in Section 102(a)(15) of the
Transportation Act (49 U.S.C. Section 40101, ET SEQ., the "Act") is prohibited;
provided, however, that such percentage shall be deemed to be automatically
increased or decreased from time to time to that percentage of ownership which
is then permissible by persons who are not "citizens of the United States" under
the Act or under any successor or other law of the United States of America
which provides for the regulation of, or is otherwise applicable to, the
Corporation or its subsidiaries in their business activities. As used in the
preceding sentence, capital stock of the Corporation means the Class A Common
Stock and any other shares of stock of the Corporation entitled to vote on
matters generally referred to the shareholders for a vote.
(vi) A share of Class B Common Stock will automatically be converted into a
share of Class A Common Stock, on a share-for-share basis, upon registration of
transfer of such share of Class B Common Stock to a "citizen of the United
States" as defined in the Act. In addition, a Conversion Event shall be deemed
to occur if at any time after all distributions have been made pursuant to the
Corporation's Third Amended Plan of Reorganization dated August 29, 1994, as
amended, the Corporation determines that the amount of Class A Common Stock held
by persons who are not "citizens of the United States" as defined in the Act has
decreased sufficiently to allow all then outstanding shares of Class B Common
Stock to convert into Class A Common Stock with the result that all holders of
Class A Common Stock and holders of rights, warrants, options or convertible
securities of the Corporation (other than Class B Common Stock) exercisable to
acquire, or convertible into, Class A Common Stock (collectively, "Rights") who
are not "citizens of the United States" as defined in the Act will not own, in
the aggregate, more than 24 percent of the outstanding shares of Class A Common
Stock, assuming full exercise of all outstanding Rights. Upon the occurrence of
a Conversion Event, the Corporation shall send a written notice of such
occurrence to the holders of Class B Common Stock at their addresses as they
appear on the records of the Corporation's stock transfer agent and each
outstanding share of Class B Common Stock shall automatically be deemed to
represent one share of Class A Common Stock. After the occurrence of a
Conversion Event, each holder of a certificate which theretofore represented
Class B Common Stock shall be entitled upon surrender of such certificate to
receive one or more certificates representing the same aggregate number of
shares of Class A Common Stock as the number of shares of Class B Common Stock
represented by the surrendered certificate.
(vii) All shares of Common Stock, whether Class A Common Stock or Class
B Common Stock, shall rank equally in the event of liquidation of the
Corporation and shall be entitled to any assets of the Corporation available for
distribution to shareholders after payment in full of any preferential amount to
which holders of Preferred Stock may be entitled. For purposes of Section
1129(b)(2)(c)(ii) of Title 11 of the United States Code, neither the Class A
Common Stock nor the Class B Common Stock shall be deemed a class junior to the
other.
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C. The total number of shares of Preferred Stock which this Corporation is
authorized to issue is two million (2,000,000) shares having a par value of $.01
each and which may be issued from time to time in one or more series. Prior to
or simultaneously with the creation and/or issuance of any such series, the
Board of Directors is hereby authorized, subject to the Plan of Reorganization
and section 1123 of the United States Bankruptcy Code, to fix the voting powers,
designations, preferences and participating, optional, relative or other special
rights, and qualifications, limitations or restrictions thereof to the full
extent permitted by the laws of the State of Hawaii, unless such voting powers,
designations, preferences, rights and qualifications, limitations or
restrictions thereof are otherwise established by these Amended Articles of
Incorporation. Unless otherwise provided in the resolution creating a series,
all shares of that series redeemed, repurchased or otherwise reacquired, as well
as shares of a series authorized but not yet issued, shall thereupon, without
further action by the Board of Directors, be or become authorized but unissued
shares subject to all of the authority of the Board of Directors in this Article
IV provided.
D. No holder of the shares of Common Stock shall have any preemptive or
preferential right of subscription for or to purchase any shares of any class of
stock or other securities of the Corporation, whether now or hereafter
authorized, other than such right or rights, if any, and upon such terms and at
such prices as the Board of Directors, in its discretion from time to time may
determine. The Board of Directors may issue shares of Common Stock or other
securities without offering the same in whole or in part to the stockholders of
the Corporation.
E. Sections 415-171 and 415-172 of the Hawaii Revised Statutes, as amended,
relating to control share acquisitions, shall not apply to any acquisition of
shares of capital stock of the Corporation.
F. No nonvoting equity securities of the Corporation shall be issued, subject
to further amendment of these Articles as permitted by the laws of the State of
Hawaii. This provision is included in these Articles in compliance with section
1123 of the United States Bankruptcy Code and shall have no further force and
effect beyond that required by said section and for so long as said section is
in effect and applicable to the Corporation.
ARTICLE V
BOARD OF DIRECTORS
If the Corporation has only one stockholder, the Board of Directors shall have
one or more directors. If the Corporation has two stockholders, the Board of
Directors shall have two or more directors. If the Corporation has three or
more stockholders, the Board of Directors shall have a minimum of three
directors. Not less than 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. The number of directors shall be fixed
by, and 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 filling of vacancies and
may provide that the remaining members of the Board of Directors, although less
than a majority 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 stockholders 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 any limitations which may be set forth in the Hawaii
Business Corporation Act, in these Articles or in the Bylaws. The Board of
Directors, without the approval of the stockholders 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.
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ARTICLE VI
OFFICERS
The officers of the Corporation shall consist of a Chairman of the Board, a
President, one or more Vice Presidents as may be prescribed by the Bylaws, a
Corporate 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.
The Chairman of the Board shall be a director of the Corporation. No other
officer and no subordinate officer need be a director of the Corporation. No
officer need be a stockholder of the Corporation. Any two or more offices may
be held by the same person, provided, however, that not less than two (2)
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 Bylaws, or as may be determined
by resolution of the Board of Directors not inconsistent with the Bylaws.
ARTICLE VII
INDEMNITY AND LIMIT ON LIABILITY
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 person acted in good faith and in a
manner he 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 the person was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea or 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 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 reasonable cause to believe that such conduct 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 any subsidiary 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, including any subsidiary
of the Corporation 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 and, except that 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 in 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.
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
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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 VII, 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 VII
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 he 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 stockholders, or (4) by the court in which the
proceeding is or was pending upon application made by the Corporation or such
person or the attorney or other person rendering services in connection with the
defense, whether or not the application by such person, attorney, or other
person is opposed by the Corporation.
E. 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 he
is entitled to be indemnified by the Corporation as authorized in this Article
VII.
F. Any indemnification pursuant to this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any Bylaw, argument or otherwise 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 a 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 him and incurred by him in any such
capacity or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article VII.
H. To the fullest extent permitted by the Hawaii Business Corporation Act as
the same exists or may hereafter be amended, a director of the Corporation shall
not be liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. If the Hawaii Business Corporation Act
is amended after the date of the filing of these Articles of Incorporation to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Hawaii
Business Corporation Act, as so amended from time to time. No repeal or
modification of this Article Vll by the stockholders shall adversely affect any
right or protection of a director of the Corporation existing by virtue of this
Article Vll at the time of such repeal or modification.
ARTICLE VIII
LIMITED LIABILITY
No stockholder of the Corporation shall be liable for any debt of the
Corporation beyond any amount which may be due and unpaid upon the par value of
the share or shares held by such stockholder.
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ARTICLE IX
BYLAWS
In furtherance and not in limitation of the powers conferred by statute, the
power to alter, amend or repeal the Bylaws or adopt new Bylaws, subject to
repeal or change by action of the stockholders, shall be vested in the Board of
Directors.
ARTICLE X
SERVICE OF PROCESS
Service of process may be made upon any officer of the Corporation.
ARTICLE XI
AMENDMENT
These Articles may be amended by the affirmative vote of the holders of not less
than two-thirds (2/3) of all the stock of the Corporation issued and outstanding
and having voting power, at a meeting duly called for such purpose, hereafter
prescribed by statute, and all rights conferred on stockholders herein are
granted subject to this reservation.
ARTICLE XII
DURATION
The Corporation shall exist in Perpetuity.
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DESIGNATION OF PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as Series A Junior Participating Cumulative Preferred Stock,
par value $.01 per share (the "Series A Preferred Stock"), and the number of
shares constituting such series shall be 20,000 (twenty thousand).
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series A Preferred Stock, in preference
to the holders of shares of Common Stock, par value $.01 per share, of the
Corporation (the "Common Stock") and of any other junior stock of the
Corporation that may be outstanding, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the [tenth day of January,
April, July and October] in each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (i) $.25 per share ($1.00 per annum), or (ii)
subject to the provision for adjustment hereinafter set forth, 1000 times the
aggregate per share amount of all cash dividends, and 1000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock, or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then and in each such event, the amount
to which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under clause (ii) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event, and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $.25 per
share ($1.00 per annum) on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which cases such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
cumulate but shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
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SECTION 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder
thereof to 1000 votes (and each one one-thousandth of a share of Series A
Preferred Stock shall entitle the holder thereof to one vote) on all matters
submitted to a vote of the shareholders of the Corporation. In the event that
the Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then and in each such event,
the number of votes per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided in the Amended Articles of
Incorporation of the Corporation or herein or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock
shall have the following special voting rights:
(i) In the event that at any time dividends on Series A
Preferred Stock, whenever accrued and whether or not consecutive, shall not have
been paid or declared and a sum sufficient for the payment thereof set aside, in
an amount equivalent to six quarterly dividends on all shares of Series A
Preferred Stock at the time outstanding, then and in each such event, the
holders of shares of Series A Preferred Stock and each other series of preferred
stock now or hereafter issued that shall be accorded such class voting right by
the Board of Directors and that shall have the right to elect one director (or,
in the event any such other series is entitled to a greater number of directors,
such number of directors, which shall be cumulative with and not in addition to
the director provided for herein, such director or directors being hereinafter
referred to as "Special Directors") as the result of a prior or subsequent
default in payment of dividends on such series (each such other series being
hereinafter called "Other Series of Preferred Stock"), voting separately as a
class without regard to series, shall be entitled to elect the Special Director
at the next annual meeting of shareholders of the Corporation, in addition to
the directors to be elected by the holders of all shares of the Corporation
entitled to vote for the election of directors, and the holders of all shares
(including the Series A Preferred Stock) otherwise entitled to vote for
directors, voting separately as a class, shall be entitled to elect the
remaining members of the Board of Directors, provided that the Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a class,
shall not have the right to elect more than one Special Director (in addition to
any Special Director to which the holders of any Other Series of Preferred Stock
are then entitled). Such special voting right of the holders of shares of
Series A Preferred Stock may be exercised until all dividends in default on the
Series A Preferred Stock shall have been paid in full or declared and funds
sufficient therefor set aside, and when so paid or provided for, such special
voting right of the holders of shares of Series A Preferred Stock shall cease,
but subject always to the same provisions for the vesting of such special voting
rights in the event of any such future dividend default or defaults.
(ii) At any time after such special voting rights shall have so
vested in the holders of shares of Series A Preferred Stock, the Secretary of
the Corporation may, and upon the written request of the holders of record of
10% or more in number of the shares of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding addressed to the Secretary at the
principal executive office of the Corporation shall, call a special meeting of
the holders of shares of Preferred Stock so entitled to vote, for the election
of the Special Directors to be elected by them as
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herein provided, to be held within 60 days after such call and at the place
and upon the notice provided by law and in the Bylaws for the holding of
meetings of shareholders; provided, however, that the Secretary shall not be
required to call such special meeting in the case of any such request
received less than 90 days before the date fixed for any annual meeting of
shareholders, and if in such case such special meeting is not called or held,
the holders of shares of Preferred Stock so entitled to vote shall be
entitled to exercise the special voting rights provided in this paragraph at
such annual meeting. If any such special meeting required to be called as
above provided shall not be called by the Secretary within 30 days after
receipt of any such request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in writing one of their number
to call such meeting, and the person so designated may, at the expense of the
Corporation, call such meeting to be held at the place and upon the notice
given by such person, and for that sole purpose shall have access to the
stock books of the Corporation. No such special meeting and no adjournment
thereof shall be held on a date later than 60 days before the annual meeting
of shareholders. If, at any meeting so called or at any annual meeting held
while the holders of shares of Series A Preferred Stock have the special
voting rights provided for in this paragraph, the holders of not less than
40% of the aggregate voting power of Series A Preferred Stock and each Other
Series of Preferred Stock then outstanding are present in person or by proxy,
which percentage shall be sufficient to constitute a quorum for the election
of additional directors as herein provided, the then authorized number of
directors of the Corporation shall be increased by the number of Special
Directors to be elected, as of the time of such special meeting or the time
of the first such annual meeting held while such holders have special voting
rights and such quorum is present, and the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a class,
shall be entitled to elect the Special Director or Directors so provided for.
If the directors of the Corporation are then divided into classes under
provisions of the Amended Articles of Incorporation of the Corporation or the
Bylaws, the Special Director or Directors shall belong to each class of
directors in which a vacancy is created as a result of such increase in the
authorized number of directors. If the foregoing expansion of the size of
the Board of Directors shall not be valid under applicable law, then the
holders of shares of Series A Preferred Stock and of each Other Series of
Preferred Stock, voting as a class, shall be entitled, at the meeting of
shareholders at which they would otherwise have voted, to elect a Special
Director or Directors to fill any then existing vacancies on the Board of
Directors, and shall additionally be entitled, at such meeting and each
subsequent meeting of shareholders at which directors are elected, to elect
all of the directors then being elected until by such class vote the
appropriate number of Special Directors has been so elected.
(iii) Upon the election-at such meeting by the holders of
shares of Series A Preferred Stock and each Other Series of Preferred Stock,
voting as a class, of the Special Director or Directors they are entitled so to
elect, the persons so elected, together with such persons as may be directors or
as may have been elected as directors by the holders of all shares (including
Series A Preferred Stock) otherwise entitled to vote for directors, shall
constitute the duly elected directors of the Corporation. Each Special Director
so elected by holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock, voting as a class, shall serve until the next annual
meeting or until their respective successors shall be elected and qualified, or
if any such Special Director is a member of a class of directors under
provisions dividing the directors into classes, each such Special Director shall
serve until the annual meeting at which the term of office of such Special
Director's class shall expire or until such Special Director's successor shall
be elected and shall qualify, and at each subsequent meeting of shareholders at
which the directorship of any Special Director is up for election, said special
class voting rights shall apply in the reelection of such Special Director or in
the election of such Special Director's successor; provided, however, that
whenever the holders of shares of Series A Preferred Stock and each Other Series
of Preferred Stock shall be divested of the special rights to elect one or more
Special Directors as above provided, the terms of office of all persons elected
as Special Directors, or elected to fill any vacancies resulting from the death,
resignation, or removal of Special Directors shall forthwith terminate (and the
number of directors shall be reduced accordingly).
(iv) If, at any time after a special meeting of shareholders or
an annual meeting of shareholders at which the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock, voting as a class,
have elected one or more Special Directors as provided
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above, and while the holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock shall be entitled so to elect one or more
Special Directors, the number of Special Directors who have been so elected
(or who by reason of one or more resignations, deaths or removals have
succeeded any Special Directors so elected) shall by reason of resignation,
death or removal be reduced the vacancy in the Special Directors may be
filled by any one or more remaining Special Director or Special Directors.
In the event that such election shall not occur within 30 days after such
vacancy arises, or in the event that there shall not be incumbent at least
one Special Director, the Secretary of the Corporation may, and upon the
written request of the holders of record of 10% or more in number of the
shares of Series A Preferred Stock and each Other Series of Preferred Stock
then outstanding addressed to the Secretary at the principal office of the
Corporation shall, call a special meeting of the holders of shares of Series
A Preferred Stock and each Other Series of Preferred Stock so entitled to
vote, for an election to fill such vacancy or vacancies, to be held within 60
days after such call and at the place and upon the notice provided by law and
in the Bylaws for the holding of meetings of shareholders; provided, however,
that the Secretary shall not be required to call such special meeting in the
case of any such request received less than 90 days before the date fixed for
any annual meeting of shareholders, and if in such case such special meeting
is not called, the holders of shares of Preferred Stock so entitled to vote
shall be entitled to fill such vacancy or vacancies at such annual meeting.
If any such special meeting required to be called as above provided shall not
be called by the Secretary within 30 days after receipt of any such request,
then the holders of record of 10% or more in number of the shares of Series A
Preferred Stock and each Other Series of Preferred Stock then outstanding may
designate in writing one of their number to call such meeting, and the person
so designated may, at the expense of the Corporation, call such meeting to be
held at the place and upon the notice above provided, and for that purpose
shall have access to the stock books of the Corporation; no such special
meeting and no adjournment thereof shall be held on a date later than 60 days
before the annual meeting of shareholders.
(d) Nothing herein shall prevent the directors or shareholders from
taking any action to increase the number of authorized shares of Series A
Preferred Stock, or increasing the number of authorized shares of Preferred
Stock of the same class as the Series A Preferred Stock or the number of
authorized shares of Common Stock, or changing the par value of the Common Stock
or Preferred Stock, or issuing options, warrants or rights to any class of stock
of the Corporation as authorized by the Amended Articles of Incorporation of the
Corporation, as it may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote as set forth in the
Amended Articles of Incorporation of the Corporation or herein or by law) for
taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Whenever any dividends or other distributions payable on the
Series A Preferred Stock as provided in Section 2 hereof are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, an shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not, directly or indirectly:
(i) declare or pay dividends on, or make any other distributions
with respect to, any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions
with respect to, any shares of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on shares of the Series A Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled;
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(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration, directly or
indirectly, any shares of stock of the Corporation unless the Corporation could,
under paragraph (a) of this Section 4, purchase or otherwise acquire such shares
at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of preferred stock, without designation as to series, and may
be reissued as part of any series of preferred stock created by resolution or
resolutions of the Board of Directors (including Series A Preferred Stock),
subject to the conditions and restrictions on issuance set forth herein.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made to:
(a) the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the greater of (i) $1.00 per share ($.001
per one one-thousandth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1000 times the aggregate amount
to be distributed per share to holders of shares of Common Stock; or
(b) the holders of shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
In the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the aggregate amount to
which the holder of each share of Series A Preferred Stock was entitled
immediately prior to such event under the proviso in clause (a) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event, and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, or otherwise
changed, then and in each such event, the shares of Series A Preferred Stock
shall at the same time be
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similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1000 times the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event that the Corporation
shall at any time declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then
and in each such event, the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Preferred Stock shall
be adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such
event, and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
SECTION 8. NO REDEMPTION. The shares of Series A Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by law,
the Amended Articles of Incorporation of the Corporation or herein.
SECTION 9. RANK. Unless otherwise provided in the Amended
Articles of Incorporation of the Corporation, including any amendment relating
to a subsequent series of preferred stock of the Corporation, the Series A
Preferred Stock shall rank junior to all other series of the Corporation's
preferred stock as to the payment of dividends and the distribution of assets on
liquidation, dissolution or winding up, and senior to the Common Stock of the
Corporation.
SECTION 10. AMENDMENT. The Amended Articles of Incorporation of
the Corporation shall not be amended in any manner that would materially and
adversely alter or change the powers, preferences or special rights of the
Series A Preferred Stock without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single series.
SECTION 11. FRACTIONAL SHARES. Series A Preferred Stock may be
issued in fractions of a share (in one one-thousandths (1/1000) of a share and
integral multiples thereof) that shall entitle the holder thereof, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and have the benefit of all other rights
of holders of shares of Series A Preferred Stock.
DESIGNATION OF SPECIAL PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The designation of the four
series so created shall be (a) Series B Special Preferred Stock, par value $.01
per share (the "Series B Special Preferred Stock"), (b) Series C Special
Preferred Stock, par value $.01 per share (the "Series C Special Preferred
Stock"), (c) Series D Special Preferred Stock, par value $.01 per share (the
"Series D Special Preferred Stock") and (d) Series E Special Preferred Stock,
par value $.01 per share (the "Series E Special Preferred Stock") (collectively,
the "Special Preferred Stock"). The Series B Special Preferred Stock shall
consist of four (4) shares. The Series C Special Preferred Stock shall consist
of one (1) share. The Series D Special Preferred Stock shall consist of one (1)
share. The Series E Special Preferred Stock shall consist of one (1) share.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS. At any time that a
dividend or distribution is declared and paid with respect to Common Stock, a
dividend shall be paid on the Special Preferred Stock in an amount per share
equal to twice the dividend per share paid on the Common Stock, and, except as
provided in Sections 6 and 7 hereof, the Special Preferred Stock shall not be
entitled to receive any other dividends or distributions thereon.
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SECTION 3. VOTING RIGHTS.
(a) VOTING RIGHTS OF THE SPECIAL PREFERRED STOCK. The Special
Preferred Stock shall have the right to vote: (i) as required by the Hawaii
Business Corporation Act and (ii) together with Class A Common Stock as a single
class with respect to any matters submitted to the shareholders of the Class A
Common Stock of the Corporation. The holder of each share of Special Preferred
Stock shall be entitled to vote each share of the Special Preferred Stock of the
Corporation which shall have been held by such holder and registered in the name
of such holder on the books of the Corporation.
(b) NOTICE. So long as any shares of the Special Preferred Stock
remain outstanding, the Corporation will provide the holders of the Special
Preferred Stock with notice of each annual and special meeting of stockholders,
including without limitation any meeting at which matters on which the Special
Preferred Stock is entitled to vote, to the same extent as the holders of the
Common Stock.
(c) CONDITIONAL RIGHT TO ELECT DIRECTORS TO FILL VACANCIES.
(i) SERIES B SPECIAL PREFERRED STOCK. In the event of a vacancy
or vacancies on the Board of Directors of the Corporation caused by the removal,
resignation or death of one or more directors whom the holders of Series B
Special Preferred Stock are entitled to identify to the Board of Directors for
nomination to the Board of Directors pursuant to the Bylaws of the Corporation,
and unless such vacancy is filled by the Board of Directors in accordance with
the Bylaws within 30 days, such vacancy or vacancies may be filled by the
affirmative vote of a majority of the holders of the Series B Special Preferred
Stock at a special meeting of holders of Series B Special Preferred Stock called
for such purpose, or by the unanimous written consent in lieu of meeting of all
holders of Series B Special Preferred Stock, such director or directors to hold
office until the next election of directors.
(ii) SERIES C SPECIAL PREFERRED STOCK. In the event of a vacancy
on the Board of Directors of the Corporation caused by the removal, resignation
or death of a director whom the holders of Series C Special Preferred Stock are
entitled to identify to the Board of Directors for nomination pursuant to the
Bylaws of the Corporation, and unless such vacancy is filled by the Board of
Directors in accordance with the Bylaws within 30 days, such vacancy may be
filled by the affirmative vote of a majority of the holders of the Series C
Special Preferred Stock at a special meeting of holders of the Series C Special
Preferred Stock called for such purpose, or by the unanimous written consent in
lieu of meeting of all holders of Series C Special Preferred Stock, such
director to hold office until the next election of directors.
(iii) SERIES D SPECIAL PREFERRED STOCK. In the event of a
vacancy on the Board of Directors of the Corporation caused by the removal,
resignation or death of a director whom the holders of Series D Special
Preferred Stock are entitled to identify to the Board of Directors for
nomination pursuant to the Bylaws of the Corporation, unless such vacancy is
filled by the Board of Directors in accordance with the Bylaws within 30 days,
such vacancy may be filled by the affirmative vote of a majority of the holders
of the Series D Special Preferred Stock at a special meeting of holders of
Series D Special Preferred Stock of called for such purpose, or by the
unanimous written consent in lieu of meeting of all holders of Series D Special
Preferred Stock, such director to hold office until the next election of
directors.
(iv) SERIES E SPECIAL PREFERRED STOCK. In the event of a vacancy
on the Board of Directors of the Corporation caused by the removal, resignation
or death of a director whom the holders of Series E Special Preferred Stock are
entitled to identify to the Board of Directors for nomination pursuant to the
Bylaws of the Corporation, unless such vacancy is filled by the Board of
Directors in accordance with the Bylaws within 30 days, such vacancy may be
filled by the affirmative vote of a majority of the holders of the Series E
Special Preferred Stock at a special meeting of holders of Series E Special
Preferred Stock called for such purpose, or by the unanimous written consent in
lieu
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of meeting of all holders of Series E Special Preferred Stock, such director
to hold office until the next election of directors.
(d) Except as otherwise expressly provided herein or otherwise
expressly required by law, the Special Preferred Stock shall not have any other
voting rights with respect to the affairs of the Corporation.
SECTION 4. CONVERSION.
(a) CONVERTIBLE INTO CLASS A COMMON STOCK.
(i) SERIES B SPECIAL PREFERRED STOCK.
a) TRANSFER. A share of Series B Special Preferred Stock
shall be converted into one share of Class A Common Stock automatically upon
transfer of such share to any person (a "Transferee") who is not an "affiliate"
of the initial holder of such share of Series B Special Preferred Stock.
"Affiliate" shall mean any corporation, partnership, limited liability company,
trust or other entity or an individual, which is, or is at least 50% owned,
directly or indirectly, by, one or more of the stockholders of the general
partners and/or the stockholders of the limited partners of the holder of the
Series B Special Preferred Stock as of the date of issuance thereof.
b) LESS THAN 5%. Each share of Series B Special Preferred
Stock shall be converted into one share of Class A Common Stock automatically if
the holder of Series B Special Preferred Stock is the holder of record of less
than 5% of the "outstanding common equity interest" of the stock of the
Corporation for a period of 365 consecutive days. "Outstanding common equity
interest" shall mean outstanding Class A Common Stock, outstanding Class B
Common Stock, Class A Common Stock to be issued upon exercise, conversion or
exchange of outstanding warrants, stock options, or convertible stock, or other
securities exerciseable, convertible or exchangeable into Class A Common Stock
(without taking into effect any anti-dilution provisions in such securities).
(ii) SERIES C SPECIAL PREFERRED STOCK. A share of Series C
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series C Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended through collective bargaining pursuant to the Railway
Labor Act, 45 U.S.C. Section 156, so that the collective bargaining agreement no
longer entitles such holders to nominate a representative on the Board of
Directors.
(iii) SERIES D SPECIAL PREFERRED STOCK. A share of Series D
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series D Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended through collective bargaining pursuant to the Railway
Labor Act, 45 U.S.C. Section 156, so that the collective bargaining agreement no
longer entitles such holders to nominate a representative on the Board of
Directors.
(iv) SERIES E SPECIAL PREFERRED STOCK. A share of Series E
Special Preferred Stock shall be converted into one share of Class A Common
Stock automatically upon transfer of such share to any Transferee. In addition
to the foregoing, each share of the Series E Special Preferred Stock shall be
converted into one share of Class A Common Stock automatically if the collective
bargaining agreement by and between the holders of such share and the
Corporation is amended through collective bargaining pursuant to the Railway
Labor Act, 45 U.S.C. Section 156, so that the collective bargaining agreement no
longer entitles such holders to nominate a representative on the Board of
Directors.
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(b) TIME OF CONVERSION AND SURRENDER OF SHARES. Conversion shall be
deemed to have been effected on the date that, as the case may be, (i) the share
of Special Preferred Stock is transferred to the Transferee, (ii) is the 365th
consecutive day after the holder of Series B Special Preferred Stock is the
holder of record of less than 5% of the outstanding common equity interest of
the stock of the Corporation, and (iii) the related collective bargaining
agreement is amended, and each such date is referred to herein as the
"Conversion Date." The Transferee or the other holder of the converted Special
Preferred Stock shall be deemed to have become a stockholder of record of the
Class A Common Stock on the applicable Conversion Date. On the applicable
Conversion Date or as soon as practicable thereafter, any holder of a converted
share of Special Preferred Stock must deliver the certificate representing such
share to the Corporation during regular business hours at the principal office
of the Corporation or at such other place as may be designated in writing
delivered to the holder of such certificate by the Corporation, duly endorsed
for transfer to the Corporation (if required by it), accompanied by written
notice identifying the Transferee or other holder, as the case may be. As
promptly as practicable thereafter, the Corporation shall issue and deliver at
such office to such Transferee or other holder a certificate for the shares of
Class A Common Stock issuable upon conversion.
(c) ISSUANCE OF CLASS A COMMON STOCK. All shares of Class A Common
Stock that may be issued upon conversion of the Special Preferred Stock shall be
issued for consideration that the Board of Directors hereby determines to be
adequate, and upon issuance, such shares of Class A Common Stock will be validly
issued, fully paid and nonassessable. The Corporation will pay any and all
documentary and other taxes that may be payable in respect of any issue or
delivery of shares of Class A Common Stock on conversion of the Special
Preferred Stock pursuant hereto. The Corporation shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issue and delivery of shares of Class A Common Stock in a name other than
that in which the shares of the Special Preferred Stock so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such transfer has paid to the Corporation the amount of any
such tax or has established to the satisfaction of the Corporation that such tax
has been paid.
(d) ADJUSTMENTS. The number of shares of Class A Common Stock
issuable upon the conversion of each share of the Special Preferred Stock shall
not be subject to adjustment.
SECTION 5. REACQUIRED SHARES. Any shares of Special Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever (including upon conversion into Class A Common Stock) shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of preferred
stock, without designation as to series, and may be reissued as part of any
series of preferred stock subsequently created by resolution or resolutions of
the Board of Directors.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. In the event
of the liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Special Preferred Stock shall be
entitled to receive, out of the assets of the Corporation, whether such assets
are capital or surplus of any nature, $.01 per share of Special Preferred Stock
before any payment shall be made or any assets distributed to the holders of the
Common Stock or the holders of any other class of stock junior in respect of
liquidation rights to the Special Preferred Stock; and the holders of the
Special Preferred Stock shall not be entitled to any further payments. If upon
such liquidation, dissolution or winding up, whether voluntary or involuntary,
the assets of the Corporation or proceeds thereof shall be insufficient to make
the full liquidating payment of $.01 per share of the Special Preferred Stock
and the full liquidating payment due to any holder of Preferred Stock of any
series ranking pari passu with the Special Preferred Stock, then such assets and
proceeds shall be distributed among the holders of the Special Preferred Stock,
ratably on a share for share basis in accordance with the respective amounts
which would be payable on all such series of Preferred Stock, if all remaining
liquidating amounts payable were paid in full and nothing shall be paid to the
holders of any other class of stock junior to the Special Preferred Stock.
Neither a consolidation nor merger of the Corporation with or into one or more
corporations, nor a sale of all or a substantial part of the assets of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
within the meaning of this Section 6 unless such consolidation,
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merger or sale shall be in connection with a plan of liquidation, dissolution
or winding up of the business of the Corporation.
SECTION 7. CONSOLIDATION, MERGER, ETC. In the event that the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, or otherwise
changed, then and in each such event, all shares of Special Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per share
equal to the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged.
SECTION 8. NO REDEMPTION. The shares of Special Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Special Preferred Stock in any other manner permitted by law,
the Amended Articles of Incorporation of the Corporation or herein.
SECTION 9. RANK. With regard to rights to receive distributions
upon liquidation, dissolution or winding up of the Corporation, the Special
Preferred Stock shall rank (i) senior to the Common Stock of the Corporation,
(ii) senior to any series of Preferred Stock of the Corporation the terms of
which specifically provide that such series shall rank junior to the Special
Preferred Stock, (iii) junior to any series of Preferred Stock of the
Corporation the terms of which specifically provide that such series shall rank
senior to the Special Preferred Stock, and (iv) pari passu with each other and
with any series of Preferred Stock of the Corporation the terms of which do not
specifically provide that such series shall rank junior or senior to the Special
Preferred Stock.
SECTION 10. PREEMPTIVE RIGHTS. No holder of the shares of Special
Preferred Stock shall have any preemptive or preferential rights of subscription
for or to purchase any shares of any class of stock or other securities of the
Corporation, whether now or hereafter authorized, other than such right or
rights, if any, and upon such terms and at such prices as the Board of
Directors, in its discretion from time to time may determine. The Board of
Directors may issue shares of Special Preferred Stock or other securities
without offering the same in whole or in part to the stockholders of the
Corporation.
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AMENDMENT OF ARTICLES OF INCORPORATION
AMENDMENT NO. 1
ARTICLE II IS AMENDED TO READ AS FOLLOWS:
"The location of the principal office of the Corporation shall be in
the City of Honolulu, Island of Oahu, State of Hawaii, and the mailing
address of the principal office of the Corporation shall be 3375
Koapaka Street, Suite G-350, Honolulu, Hawaii 96819, or such other
mailing address as shall be specified by an amendment to the Bylaws of
the Corporation. The Corporation may have such other offices within
and without the State of Hawaii as its business may have from time to
time require."
AMENDMENT NO. 2
ARTICLE IV, SECTION A IS AMENDED TO READ AS FOLLOWS:
"A. The Corporation is authorized to issue two classes of shares of
capital stock, which shall be designated Common Stock and Preferred
Stock, respectively. The total number of shares of capital stock
which the Corporation is authorized to issue is sixty-two million
(62,000,000) shares.
ARTICLE IV, SECTION B, SUBSECTIONS (i), (ii), (iii), (iv) AND (iv) ARE AMENDED
TO READ AS FOLLOWS:
B. (i) The total number of shares of Common Stock which the
Corporation shall have authority to issue is sixty million
(60,000,000) shares, and all such shares shall have a par value of
$.01 per share.
(ii) The Common Stock shall have all the voting rights provided
under the Hawaii Business Corporation Act for voting common stock
except as otherwise provided in these Amended Articles of
Incorporation.
(iii) The ownership or control of more than twenty-five
percent (25%) of the issued and outstanding voting capital stock of
the Corporation by persons who are not "citizens of the United States"
as defined in Section 102(a)(15) of the Transportation Act (49 U.S.C.
Section 4101, ET SEQ., the "Act") is prohibited; provided, however,
that such percentage shall be deemed to be automatically increased or
decreased from time to time so that percentage of ownership which is
then permissible by persons who are not "citizens of the United
States" under the Act or under any successor or other law of the
United States of America which provides for the regulation of, or is
otherwise applicable to, the Corporation or its subsidiaries in their
business activities. As used in the preceding sentence, capital stock
of the Corporation means the Common Stock and any shares of Preferred
Stock of the Corporation entitled to vote on matters generally
referred to the shareholders for a vote.
(iv) All shares of Common Stock shall rank equally in the
event of liquidation of the Corporation and shall be entitled to any
assets of the Corporation available for distribution to shareholders
after payment in full of any preferential amount to which holders of
Preferred Stock may be entitled.
(v) Any certificates that represent shares of Class A Common
Stock and any documents that refer to shares of Class A Common Stock
shall for all purposes be deemed to represent and refer to shares of
Common Stock of the Company."
<PAGE>
AMENDMENT NO. 3
ARTICLE IV, SECTION C IS AMENDED TO READ AS FOLLOWS:
"C. The total number of shares of Preferred Stock which this
Corporation is authorized to issue is two million (2,000,000) shares
having a par value of $.01 each and which may be issued from time to
time in one or more series. Prior to or simultaneously with the
creation and/or issuance of any such series, the Board of Directors is
hereby authorized to fix the voting powers, designations, preferences
and participating, optional, relative or other special rights, and
qualifications, limitations or restrictions thereof to the full extent
permitted by the laws of the State of Hawaii, unless such voting
powers, designations, preferences, rights and qualifications,
limitations or restrictions thereof are otherwise established by these
Amended Articles of Incorporation; provided that, in no event shall
any shares, except shares of the Series A Junior Participating
Cumulative Preferred Stock, par value $.01 per share, be entitled to
more than one vote per share on any matters for which shareholder
approval is required. Unless otherwise provided in the resolution
creating a series, all shares of that series redeemed, repurchased or
otherwise reacquired, as well as shares of a series authorized but not
yet issued, shall thereupon, without further action by the Board of
Directors, be or become authorized but unissued shares subject to all
of the authority of the Board of Directors in this Article IV
provided."
ARTICLE IV, SECTION F IS DELETED IN ITS ENTIRETY.
AMENDMENT NO. 4
ARTICLE IV, SECTION D IS AMENDED TO READ AS FOLLOWS:
"D. No holder of the shares of any class of capital stock or other
securities of the Corporation shall have any preemptive or
preferential right of subscription for or to purchase any shares of
any class of stock or other securities of the Corporation, whether now
or hereafter authorized, other than such right or rights, if any, and
upon such terms and at such prices as the Board of Directors, in its
discretion, from time to time may determine. The Board of Directors
may issue shares of capital stock or other securities without offering
the same in whole or part to the holders of the capital stock or any
other securities of the Corporation."
DESIGNATION OF PREFERRED STOCK, SECTION 12 IS AMENDED TO READ AS FOLLOWS:
"SECTION 12. PREEMPTIVE RIGHTS. No holder of shares of Series A
Preferred Stock shall have any preemptive or preferential rights of
subscription for or to purchase any shares of any class of stock or
other securities of the Corporation, whether now or hereafter
authorized, other than such right or rights, if any, and upon such
terms and at such prices as the Board of Directors, in its discretion,
from time to time may determine. The Board of Directors may issue
shares of any class of stock or other securities without offering the
same in whole or in part to the stockholders of the Corporation."
AMENDMENT NO. 5
ARTICLE VI SHALL BE AMENDED TO READ AS FOLLOWS:
"The officers of the Corporation shall consist of such 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, and shall have such qualifications, as may be prescribed by
the Bylaws. Any two or more offices may be held by the same person,
provided, however, that not less than two (2) persons shall be
officers.
<PAGE>
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."
