ARTICLES OF INCORPORATION
OF
DAKOTA GROWERS RESTRUCTURING COMPANY, INC.
The undersigned incorporator, a natural person of full age, in order to form a business corporation under the North Dakota Business Corporation Act, hereby adopts the following articles of incorporation:
ARTICLE I. NAME. The name of this corporation is Dakota Growers Restructuring Company, Inc. (hereinafter called the "Company").
ARTICLE II. EXISTENCE. The period of the Company's duration is perpetual.
ARTICLE III. PURPOSE. The purposes for which the Company is organized are to engage in any lawful act or activity for which corporations may be organized under the North Dakota Business Corporation Act, including, but not limited to, the manufacturing of food for human consumption from durum and other grain products, engaging in any related activity or service in conjunction with the marketing, manufacturing, processing or utilization of grain, grain products, grain by-products and other agricultural products.
ARTICLE IV. AUTHORIZED SHARES. The total number of shares of capital stock which the Company has authority to issue is Sixty Million (60,000,000) shares, consisting of:
The Common Stock, Preferred Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Delivery Preferred Stock shall have the rights, privileges, preferences, qualifications, limitations and restrictions set forth below.
ARTICLE V. COMMON STOCK.
5.1 Voting. Except as required by applicable law, each holder of Common Stock shall be entitled to one vote for each share of Common Stock held on all matters to be voted upon by the Company's stockholders. The right to vote provided herein shall be subject to the provisions of the By-Laws of the
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Company in effect from time to time with respect to closing the transfer books and fixing a record date for the determination of shares entitled to vote.
5.2 Dividends Subject to the preferential dividend rights of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Delivery Preferred Stock described herein, holders of Common Stock shall be entitled to receive when, as and if declared by the Board of Directors of the Company, out of any assets of the Company legally available therefor, such dividends as may be declared from time to time by the Board of Directors of the Company.
5.3 Liquidation. Upon the occurrence of a Liquidation Event (as hereinafter defined), after payment of amounts to the holders of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Delivery Preferred Stock as set forth herein, the remaining assets of the Company available for distribution shall be paid to the holders of Common Stock ratably among such holders based upon the number of share of Common Stock held by each holder as of the time of such distribution. "Liquidation Event" means the voluntary or involuntary liquidation, dissolution or winding up of the Company The Company shall mail written notices of a Liquidation Event to each record holder of Common Stock no less than 60 days prior to the payment date stated therein. Payments required to be made pursuant to this Section 5.3 shall be made in cash.
5.4 Preemptive Rights. Unless otherwise provided by the Board of Directors of the Company, no holder of Common Stock of the Company shall have any preferential, preemptive, or other rights of subscription to any shares of any class of capital stock of the Company allotted or sold or to be allotted or sold now or hereafter authorized, or to any obligations convertible into the capital stock of the Company of any class, or any right of subscription to any part thereof.
ARTICLE VI. PREFERRED STOCK. Preferred Stock may be issued in one or more series as determined from time to time by the Board of Directors of the Company. The Board of Directors of the Company is hereby granted the express authority to fix any other designations, powers, preferences, rights, qualifications, limitations or restrictions with respect to any particular series of Preferred Stock prior to issuance thereof.
ARTICLE VII. SERIES A PREFERRED STOCK.
7.1 Voting. Except as required by North Dakota law, the holders of Series A Preferred Stock shall not be entitled to vote any matters to be voted upon by the Company's stockholders.
7.2 Dividends. Holders of Series A Preferred Stock shall receive, out of funds legally available therefor, cumulative dividends on each share of Series A Preferred Stock accruing at the rate of six percent (6.0%) of the par value of each share per annum. One quarter of the annual dividends on Series A Preferred Stock shall be payable each quarter.
7.3 Liquidation. Upon the occurrence of a Liquidation Event, before any distribution or payment is made on Series B Preferred Stock, Series C Preferred Stock, Series D Delivery Preferred Stock and Common Stock, each holder of Series A Preferred Stock shall be entitled to receive the $100.00 par value on every share of Series A Preferred Stock held by such holder, plus any accumulated and unpaid dividends thereon to the date fixed for distribution. If, upon any Liquidation Event, the Company's assets to be distributed among the holders of Series A Preferred Stock are insufficient to permit payment to such holders of the aggregate amount to which they are to be paid, then the entire assets to be distributed shall be distributed ratably among the holders of Series A Preferred Stock. The Company shall mail written notices of a Liquidation Event to each record holder of Series A Preferred Stock no less than 60 days prior to the payment date stated therein. Payments required to be made pursuant to this Section 7.3 shall be made in cash.
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7.4 Redemption.
7.5 Preemptive Rights. Unless otherwise provided by the Board of Directors of the Company, no holder of Series A Preferred Stock of the Company shall have any preferential, preemptive, or other rights of subscription to any shares of any class of capital stock of the Company allotted or sold or to be allotted or sold now or hereafter authorized, or to any obligations convertible into the capital stock of the Company of any class, or any right of subscription to any part thereof.
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ARTICLE VIII. SERIES B PREFERRED STOCK.
8.1 Voting. Except as required by North Dakota law, the holders of Series B Preferred Stock shall not be entitled to vote any matters to be voted upon by the Company's stockholders.
8.2 Dividends. Holders of Series B Preferred Stock shall receive, out of funds legally available therefor, dividends on each share of Series B Preferred Stock accruing at the rate of two percent (2.0%) of the par value of each share per annum. Dividends on the Series B Preferred Stock shall be payable annually. Dividends on Series B Preferred Stock shall not accrue if not declared by the Board of Directors of the Company.
8.3 Liquidation. Upon the occurrence of a Liquidation Event, after any distribution or payment is made on Series A Preferred Stock and before any distribution or payment is made on Series D Delivery Preferred Stock and Common Stock, each holder of Series B Preferred Stock shall be entitled to receive the $100.00 par value on every share of Series B Preferred Stock held by such holder, plus any declared and unpaid dividends thereon to the date fixed for distribution. If, upon any Liquidation Event, the Company's assets to be distributed among the holders of Series B Preferred Stock and Series C Preferred Stock are insufficient to permit payment to such holders of the aggregate amount to which they are to be paid, then the entire assets to be distributed shall be distributed ratably among such holders. The Company shall mail written notices of a Liquidation Event to each record holder of Series A Preferred Stock no less than 60 days prior to the payment date stated therein. Payments required to be made pursuant to this Section 8.3 shall be made in cash.
8.4 Redemptions.
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after surrender of the certificate representing the redeemed shares of Series B Preferred Stock.
8.5 Preemptive Rights. Unless otherwise provided by the Board of Directors of the Company, no holder of Series B Preferred Stock of the Company shall have any preferential, preemptive, or other rights of subscription to any shares of any class of capital stock of the Company allotted or sold or to be allotted or sold now or hereafter authorized, or to any obligations convertible into the capital stock of the Company of any class, or any right of subscription to any part thereof.
ARTICLE IX. SERIES C PREFERRED STOCK.
9.1 Voting. Unless required by North Dakota law, the holders of Series C Preferred Stock shall not be entitled to vote any matters to be voted upon by the Company's stockholders.
9.2 Dividends. Subject to the preferential dividend rights of the Series A Preferred Stock and Series B Preferred Stock, holders of the Series C Preferred Stock shall receive when, as and if declared by the Board of Directors of the Company, out of assets of the Company legally available therefor, dividends on each share of Series C Preferred Stock accruing at the rate of six percent (6.0%) of the par value of each share per annum. Dividends on Series C Preferred Stock shall not accrue if not declared by the Board of Directors of the Company.
9.3 Liquidation. Upon the occurrence of a Liquidation Event, after any distribution or payment is made on Series A Preferred Stock and before any distribution or payment is made on Series D Delivery Preferred Stock and Common Stock, each holder of Series C Preferred Stock shall be entitled to receive the $100.00 par value on every share of Series C Preferred Stock held by such holder, plus any declared and unpaid dividends thereon to the date fixed for distribution. If, upon any Liquidation Event, the Company's assets to be distributed among the holders of Series C Preferred Stock and Series B Preferred Stock are insufficient to permit payment to such holders of the aggregate amount to which they are to be paid, then the entire assets to be distributed shall be distributed ratably among such holders. The Company shall mail written notices of a Liquidation Event to each record holder of Series A Preferred Stock no less than 60 days prior to the payment date stated therein. Payments required to be made pursuant to this Section 9.3 shall be made in cash.
9.4 Conversion.
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twenty-four (24) shares of Common Stock of the Company and 24 shares of Series D Delivery Preferred Stock.
9.5 Preemptive Rights. Unless otherwise provided by the Board of Directors of the Company, no holder of Series C Preferred Stock of the Company shall have any preferential, preemptive, or other rights of subscription to any shares of any class of capital stock of the Company allotted or sold or to be allotted or sold now or hereafter authorized, or to any obligations convertible into the capital stock of the Company of any class, or any right of subscription to any part thereof.
ARTICLE X. SERIES D DELIVERY PREFERRED STOCK.
10.1 Voting. Except as required by North Dakota law, the holders of Series D Delivery Preferred Stock shall not be entitled to vote on any matters to be voted upon by the Company's stockholders.
10.2 Dividends. Subject to the preferential dividend rights of the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, holders of the Series D Delivery Preferred Stock shall receive when, as and if declared by the Board of Directors of the Company, out of assets of the Company legally available therefor, a dividend of up to $.04 per share on each share of Series D Delivery Preferred Stock; provided however an annual dividend of $.01 per share of Series D Delivery Preferred Stock must be paid prior to payment of any dividend on Common Stock. Dividends on Series D Delivery Preferred Stock shall not accrue if not declared by the Board of Directors of the Company.
10.3 Liquidation. Upon the occurrence of a Liquidation Event, subject to the liquidation preference of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock but before any distribution or payment is made on Common Stock, each holder of Series D Delivery Preferred Stock shall be entitled to receive the $.01 par value on every share of Series D Delivery Preferred Stock held by such holder, plus any declared and unpaid dividends thereon to the date fixed for distribution.
10.4 Delivery of Durum Wheat.
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non-holders of Series D Delivery Preferred Stock are given the opportunity to deliver Durum Wheat to the Company.
10.5 Preemptive Rights. Unless otherwise provided by the Board of Directors of the Company, no holder of Series D Delivery Preferred Stock of the Company shall have any preferential, preemptive, or other rights of subscription to any shares of any class of capital stock of the Company allotted or sold or to be allotted or sold now or hereafter authorized, or to any obligations convertible into the capital stock of the Company of any class, or any right of subscription to any part thereof.
10.6 Transfers. Any transfer of Series D Delivery Preferred Stock shall be subject to the approval of the Board of Directors; any transfer attempted or completed without such approval shall be null and void.
ARTICLE XI. REGISTERED AGENT. The registered office and the executive office of the Company in the State of North Dakota shall be One Pasta Avenue, Carrington, ND 58421. The name and address of the registered agent of the Company is Thomas P. Friezen, One Pasta Avenue, Carrington, ND 58421.
ARTICLE XII. REGISTRATION OF TRANSFER. The Company shall keep at its principal office (or at such other place as the Company reasonably designates) a register for the registration of shares of Common Stock, Preferred Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Delivery Preferred Stock.
ARTICLE XIII. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to the Company (an affidavit of the registered holder will be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing one or more shares of Common Stock, Preferred Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Delivery Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Company, or, in the case of any such mutilation upon
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surrender of such certificate, the Company shall promptly execute and deliver in lieu of such certificate of like kind representing the number of shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.
ARTICLE XIV. NOTICES. All notices referred to herein shall be in writing and shall be delivered by registered or certified mail, return receipt requested and postage prepaid or by a reputable overnight courier service, charges prepaid, and shall be deemed to have been given when so mailed or sent (a) to the Company at its principal executive offices or (b) to any stockholder at such holder's address as it appears in the stock records of the Company (unless otherwise indicated by any holder).
ARTICLE XV. AMENDMENT AND WAIVER. No amendment or waiver of any provision of this Articles of Incorporation shall be effective without the prior consent of the holders of at least a majority of the then outstanding shares of Common Stock voting as a class.
ARTICLE XVI. VOTES REQUIRED. At all meetings of stockholders, each stockholder of record shall be entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of record on the record date for the meeting. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the voting power of all of the shares of stock of the Company outstanding and entitled to vote on any matter, question or proposal brought before such meeting shall decide such question, unless the question is one upon which, by express provision of law, this Articles of Incorporation or the By-Laws of the Company, a different vote is required, in which case such express provision shall govern and control the decision of such question.
ARTICLE XVII. MANAGEMENT. For the management of the business and for the conduct of the affairs of the Company, and in further definition, limitation and regulation of the powers of the Company and of the directors and of its stockholders, as the case may be, it is further provided:
ARTICLE XVIII. DIRECTOR LIABILITY. A director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except for (i) liability based on a breach of the duty of loyalty to the corporation or the shareholders; (ii) liability for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (iii) liability based on the payment of an improper dividend or an improper repurchase of the corporation's stock under Section 10-19.1-95 of the North Dakota Business Corporation Act or in violation of federal or state securities laws; or (iv) liability for any transaction from which the director derived an improper personal benefit. If the North Dakota Business Corporation Act is hereafter amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended North Dakota Business Corporation Act.
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ARTICLE XIX. DIRECTOR INDEMNIFICATION. Any person who at any time shall serve or shall have served as a director, officer, or employee of the corporation, or of any other enterprise at the request of the corporation, and the heirs, executors and administrators of such person shall be indemnified by the corporation in accordance with, and to the fullest extent permitted by, the provisions of the North Dakota Business Corporation Act, as it may be amended from time to time.
ARTICLE XX. INCORPORATOR. The name and address of the incorporator is:
Ronald D. McFall
4200 IDS Center
80 South Eight Street
Minneapolis, MN 55402
IN WITNESS WHEREOF, I have hereunto set my hand this 29th day of January, 2002
Ronald D. McFall |
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