Exhibit 3.2
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
EFFECTIVE FEBRUARY 4, 2002
ARTICLE 1
The name of the corporation (hereinafter referred to as the
"Corporation") is NORTHLAND CRANBERRIES, INC.
ARTICLE 2
The period of existence of the Corporation shall be perpetual.
ARTICLE 3
The purpose or purposes for which the Corporation is organized is to
carry on and engage in any lawful activity within the purposes for which
corporations may be organized under the Wisconsin Business Corporation Law,
Chapter 180 of the Wisconsin Statutes.
ARTICLE 4
The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is One Hundred Fifty-Nine Million
(159,000,000) shares, consisting of: (i) One Hundred Fifty Million (150,000,000)
shares of a class designated as "Class A Common Stock," with a par value of one
cent ($.01) per share; (ii) Four Million (4,000,000) shares of a class
designated as "Class B Common Stock," with a par value of one cent ($.0l) per
share; and (iii) Five Million (5,000,000) shares of a class designated as
"Preferred Stock," with a par value of one cent ($.0l) per share.
Any and all such shares of Class A Common Stock and Class B Common
Stock (collectively, "Common Stock"), and all Preferred Stock, may be issued for
such consideration, not less than the par value thereof, as shall be fixed from
time to time by the Board of Directors. Any and all of the shares so issued, the
full consideration for which has been paid or delivered, shall be deemed fully
paid capital stock and shall not be liable to any further call or assessment
thereon, and the holders of such shares shall not be liable for any further
payments except as otherwise provided by Section 180.0622 of the Wisconsin
Business Corporation Law or any successor provision thereto, if any.
The designation, relative rights, preferences and limitations of the
shares of each class and the authority of the Board of Directors of the
Corporation to establish and to designate series of the Preferred Stock and to
fix the variations in the relative rights, preferences and limitations as
between such series, shall be as set forth herein.
A. Preferred Stock
(1) Series and Variations Between Series. The Board of Directors
of the Corporation is authorized, subject to limitations prescribed by the
Wisconsin Business Corporation Law and the provisions of this paragraph A, to
provide for the issuance of the Preferred Stock in series, to establish or
change the number of shares to be included in each such series and to fix the
designation, relative rights, preferences and limitations of the shares of each
such series. The authority of the Board of Directors of the Corporation with
respect to each series shall include, but not be limited to, determination of
the following:
(i) The number of shares constituting that series and the
distinctive designations of that series;
(ii) The dividend rate or rates on the shares of that series
and/or the method of determining such rate or rates and the timing of
dividend payments on the shares of such series;
(iii) Whether and to what extent the shares of that series
shall have voting rights in addition to the voting rights provided by
Wisconsin Business Corporation Law, which might include the right to elect
a specified number of directors in any case or if dividends on such series
were not paid for a specified period of time;
(iv) Whether the shares of that series shall be convertible
into shares of stock of any other series, and, if so, the terms and
conditions of such conversion, including the price or prices and the rate
or rates of conversion and the terms of adjustment thereof;
(v) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable
and the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates;
(vi) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation;
(vii) The obligation, if any, of the Corporation to retire
shares of that series pursuant to a sinking fund; and
(viii) Any other relative rights, preferences and
limitations of that series.
Subject to the designations, relative rights, preferences and
limitations provided pursuant to this paragraph A, each share of Preferred Stock
shall be of equal rank with each other share of Preferred Stock.
(2) Dividends. Before any dividends shall be paid or set apart
for payment upon shares of Common Stock, the holders of each series of Preferred
Stock shall be
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entitled to receive dividends at the rate per annum and at such times as
specified in the particular series. Dividends on shares of Preferred Stock shall
be paid out of any funds legally available for the payment of such dividends,
when and if declared by the Board of Directors. Such dividends shall accumulate
on each share of Preferred Stock from the date of issuance. All dividends on
shares of Preferred Stock shall be cumulative so that if the Corporation shall
not pay, on a timely basis, the specified dividend, or any part outstanding,
such deficiency shall thereafter be fully paid, but without interest, before any
dividend shall be paid or set apart for payment on the Common Stock.
Any dividend paid upon the Preferred Stock at a time when any
accumulated dividends for any prior period are delinquent shall be expressly
declared as a dividend in whole or partial payment of the accumulated dividend
for the earliest dividend period for which dividends are then delinquent, and
shall be so designated to each shareholder to whom payment is made. All shares
of Preferred Stock shall rank equally and shall share ratably, in proportion to
the rate of dividend of the series, in all dividends paid or set aside for
payment for any dividend period or part thereof upon any such shares.
Except to the limited extent hereinafter provided, so long as any
shares of Preferred Stock shall be outstanding, no dividend, whether in cash,
stock or otherwise, shall be paid or declared nor shall any distribution be made
on the Common Stock, nor shall any Common Stock be purchased, redeemed or
otherwise acquired for value by the Corporation, nor shall any moneys be paid to
or set aside or made available for a sinking fund for the purchase or redemption
of any Common Stock, unless:
(i) All dividends on the Preferred Stock of all series for all
past dividend periods shall have been paid or shall have been declared and
a sum sufficient for the payment thereof set apart; and
(ii) The Corporation shall have set aside all amounts theretofore
required to be set aside as and for all sinking fund accounts, if any, for
the redemption or purchase of all series of Preferred Stock for all past
sinking fund payment periods or dates.
The foregoing provisions shall not, however, apply to, or in any way restrict
(x) any acquisition of Common Stock in exchange solely for Common Stock; (y) the
acquisition of Common Stock through application of the proceeds of the sale of
Common Stock; or (z) stock dividends or distributions payable only in shares of
stock having rights and preferences subordinate to the Preferred Stock.
(3) Liquidation, Dissolution or Winding Up. In case of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, the
holders of shares of each series of Preferred Stock shall be entitled to receive
out of the assets of the Corporation in money or money's worth the amount
specified in the particular series for each share at the time outstanding
together with all accrued but unpaid dividends thereon, before any of such
assets shall be paid or distributed to holders of Common Stock. In case of the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, if the assets of the Corporation shall be insufficient to pay the
holders of all shares of Preferred Stock then outstanding the entire
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amounts to which they may be entitled, the holders of shares of each outstanding
series of Preferred Stock shall share ratably in such assets in proportion to
the respective amounts payable in liquidation.
(4) Voting Rights. The holders of Preferred Stock shall have only
such voting rights as are fixed for shares of each series by the Board of
Directors pursuant to this paragraph A or are provided by the Wisconsin Business
Corporation Law.
B. Common Stock.
(1) Voting Rights and Powers.
(a) Except as otherwise provided by the Wisconsin Business
Corporation Law and except as may be determined by the Board of Directors
with respect to the Preferred Stock pursuant to paragraph A of this Article
4, only the holders of Common Stock shall be entitled to vote for the
election of directors of the Corporation and for all other corporate
purposes. With respect to all matters upon which shareholders are entitled
to vote or to which shareholders are entitled to give consent, the holders
of the outstanding shares of Class A Common Stock and the holders of the
outstanding shares of Class B Common Stock shall vote together as a single
class, and every holder of any outstanding share of Class A Common Stock
shall be entitled to cast thereon one (1) vote in person or by proxy for
each share of Class A Common Stock standing in his name on the stock
transfer records of the Corporation, and every holder of any outstanding
shares of Class B Common Stock shall be entitled to cast thereon three (3)
votes in person or by proxy for each share of Class B Common Stock standing
in his name on the stock transfer records of the Corporation; provided
that, with respect to any proposed corporate action which would require a
separate class vote under the Wisconsin Business Corporation Law, the
approval of a majority of the votes entitled to be cast by the holders of
the class affected by the proposed action, voting separately as a class,
shall be obtained in addition to the approval of a majority of the votes
entitled to be cast by the holders of the Class A Common Stock and the
Class B Common Stock voting together as a single class as hereinbefore
provided.
(b) The voting power limitations and/or restrictions of
Section 180.1150 of the Wisconsin Business Corporation Law, or any
successor provision thereto, shall not apply to any shares of Class B
Common Stock held by any person.
(2) Dividends and Distributions.
(a) Subject to the provisions of this Article 4, the Board
of Directors may, in its discretion, out of funds legally available for the
payment of dividends and at such times and in such manner as determined by
the Board of Directors, declare and pay dividends on the Common Stock.
(b) As and when cash dividends may be declared from time to
time by the Board of Directors out of funds legally available therefor, the
cash dividend payable with respect to each share of the Class A Common
Stock shall in all cases be in an amount equal to at least one hundred ten
percent (110%) of the amount of the cash
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dividend payable with respect to each share of the Class B Common Stock.
Cash dividends may be declared and payable with respect to the Class A
Common Stock without a concurrent cash dividend declared and payable with
respect to the Class B Common Stock. Distributions declared by the Board of
Directors to be in connection with the partial or complete liquidation of
the corporation or any of its subsidiaries shall not be considered to be
cash dividends for the purposes of this Paragraph (2).
(c) Each share of Class A Common Stock and Class B Common
Stock shall be equal in respect to rights to dividends (other than those
payable in cash) and distributions (except distributions declared by the
Board of Directors to be in connection with the liquidation, dissolution or
winding up of the Corporation) when and as declared, in the form of stock
or other property of the Corporation, except that in the case of dividends
or other distributions payable in stock split-ups or divisions, which occur
after the initial issuance of shares of the Class B Common Stock by the
Corporation, only shares of Class A Common Stock shall be distributed with
respect to the Class A Common Stock and only shares of Class B Common Stock
shall be distributed with respect to the Class B Common Stock.
(3) Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, after there
shall have been paid to or set aside for the holders of shares of Preferred
Stock the full preferential amounts to which they are entitled, the holders
of outstanding shares of Common Stock shall be entitled to receive pro
rata, according to the number of shares held by each, the remaining assets
of the Corporation available for distribution as set forth herein.
(b) In case of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of Class A Common
Stock shall be entitled to receive out of the assets of the Corporation in
money or money's worth the sum of One Dollar ($1.00) per share (the "Class
A Payment"), subject to equitable adjustment in the event of any
subdivisions, combinations, stock splits or stock dividends involving
shares of the Class A Common Stock, before any of such assets shall be paid
or distributed to holders of Class B Common Stock. If the assets of the
Corporation shall be insufficient to pay the entire Class A Payment to the
holders of the then outstanding Class A Common Stock, then the holders of
the Class A Common Stock shall share ratably in such assets in proportion
to the amounts which would be payable with respect to Class A Common Stock
as if the Class A Payment was paid in full. After payment in full of the
Class A Payment, the holders of Class B Common Stock shall be entitled to
receive out of the remaining assets of the Corporation in money or money's
worth the sum of One Dollar ($1.00) per share (the "Class B Payment"),
subject to equitable adjustment in the event of any subdivisions,
combinations, stock splits or stock dividends involving shares of the Class
B Common Stock, before any of such remaining assets shall be paid or
distributed to holders of the Class A Common Stock. If the remaining assets
of the Corporation shall be insufficient to pay the entire Class B Payment
to the holders of the then outstanding Class B Common Stock, then the
holders of the Class B Common Stock shall share ratably in such assets in
proportion to the amounts which would be payable
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with respect to Class B Common Stock as if the Class B Payment was paid in
full. After payment in full of the Class A Payment and the Class B Payment,
any further payments on the liquidation, dissolution or winding up of the
business of the Corporation shall be made on an equal basis as to all of
the shares of capital stock then outstanding.
(4) Conversion of the Class B Common Stock.
(a) Each share of Class B Common Stock may at any time or
from time to time, at the option of the respective holder thereof, be
converted into one fully paid and nonassessable (except to the extent of
any statutory liability imposed by Section 180.0622 of the Wisconsin
Business Corporation Law) share of Class A Common Stock. Such conversion
right shall be exercised by the surrender of the certificate representing
such share of Class B Common Stock to be converted to the Corporation at
any time during normal business hours at the principal executive offices of
the Corporation in Wisconsin Rapids, Wisconsin (to the attention of the
Secretary of the Corporation), or if an agent for the registration or
transfer of shares of Class B Common Stock is then duly appointed and
acting (said agent being referred to in this Article 4 as the "Transfer
Agent") then at the office of the Transfer Agent, accompanied by a written
notice of the election by the holder thereof to convert and (if so required
by the Corporation or the Transfer Agent) by instruments of transfer, in
form satisfactory to the Corporation and to the Transfer Agent, if any,
duly executed by such holder or his duly authorized attorney, and transfer
tax stamps or funds therefor, if required pursuant to Paragraph (4) (e)
below.
(b) As promptly as practicable after the surrender for
conversion of a certificate representing shares of Class B Common Stock in
the manner provided in Paragraph (4) (a), above, and the payment in cash of
any amount required by the provisions of Paragraphs (4) (a) and (4) (e),
the Corporation will deliver, or will cause to be delivered at the office
of the Transfer Agent to, or upon the written order of, the holder of such
certificate, a certificate or certificates representing the number of full
shares of Class A Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct. The Corporation shall not,
however, upon any such conversion, issue any fractional share of Class A
Common Stock, and any shareholder who would otherwise be entitled to
receive such fractional share if issued shall receive in lieu thereof a
full share of Class A Common Stock. Any such conversion shall be deemed to
have been made immediately prior to the close of business on the date of
the surrender of the certificate representing shares of Class B Common
Stock, and all rights of the holder of such shares as such holder shall
cease at such time and the person or persons in whose name or names the
certificate or certificates representing the shares of Class A Common Stock
are to be issued shall be treated for all purposes as having become the
record holder or holders of such shares of Class A Common Stock at such
time; provided, however, that any such surrender and payment on any date
when the stock transfer records of the Corporation shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates representing shares of Class A Common Stock are to be issued
as the record holder or holders thereof for all purposes immediately prior
to the close of business on the next succeeding day on which such stock
transfer records are open.
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(c) No adjustment in respect of dividends shall be made upon
the conversion of any shares of Class B Common Stock; provided, however,
that if a share shall be converted subsequent to the record date for the
payment of a dividend or other distribution on shares of Class B Common
Stock but prior to such payment, the registered holder of such share at the
close of business on such record date shall be entitled to receive the
dividend or other distribution payable on such share on the date set for
payment of such dividend or other distribution notwithstanding the
conversion thereof or the Corporation's default in payment of the dividend
or distribution due on such date.
(d) The Corporation will at all times reserve and keep
available, solely for the purpose of issuance upon conversion of the
outstanding shares of Class B Common Stock, such number of shares of Class
A Common Stock as shall be issuable upon the conversion of all of such
outstanding shares; provided, however, that nothing contained herein shall
be construed to preclude the Corporation from satisfying its obligations in
respect of the conversion of the outstanding shares of Class B Common Stock
by delivery of purchased shares of Class A Common Stock which are held in
the treasury of the Corporation. If any shares of Class A Common Stock
required to be reserved for purposes of conversion hereunder require
registration with, or approval of, any governmental authority under any
Federal or state law before such shares of Class A Common Stock may be
issued upon conversion, the Corporation will use its best efforts to cause
such shares to be duly registered or approved, as the case may be.
(e) The issuance of certificates for shares of Class A
Common Stock upon conversion of shares of Class B Common Stock shall be
made without charge for any stamp or other similar tax in respect of such
issuance. However, if any such certificate is to be issued in a name other
than that of the holder of the share or shares of Class B Common Stock
converted, the person or persons requesting the issuance thereof shall pay
to the Corporation the full amount of any tax which may be payable in
respect of any transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid.
(f) When the number of outstanding shares of Class B Common
Stock falls below two percent (2%) of the aggregate number of shares of
Class A Common Stock and Class B Common Stock then outstanding (or such
higher number as results from adjustments for stock splits, stock dividends
or other events), the outstanding shares of Class B Common Stock shall be
deemed without further act on anyone's part to be immediately and
automatically converted into shares of Class A Common Stock, and stock
certificates formerly representing outstanding shares of Class B Common
Stock shall thereupon and thereafter be deemed to represent a like number
of full shares of Class A Common Stock. In the event that any shareholder
would otherwise be entitled to receive a fractional share of Class A Common
Stock upon any such conversion, such shareholder shall receive in lieu
thereof a full share of Class B Common Stock.
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(5) No Subsequent Issuance of Class B Common Stock
Subsequent to the initial issuance of the shares of Class B Common
Stock, the Board of Directors may only issue such shares in the form of a
distribution or distributions pursuant to a stock dividend on or split-up of the
shares of the Class B Common Stock and only to the then holders of the
outstanding shares of the Class B Common Stock in conjunction with and in the
same ratio as a stock dividend on or split-up of the shares of the Class A
Common Stock. Except as provided in this paragraph (5), the Corporation shall
not issue additional shares of Class B Common Stock after the initial issuance
of such shares by the Corporation, and all shares of Class B Common Stock
surrendered for conversion shall be retired, unless otherwise approved by the
affirmative vote of the holders of a majority of the outstanding shares of the
Class A Common Stock and Class B Common Stock entitled to vote, voting together
as a single class, as provided in Paragraph (B) (1) of this Article 4.
(6) No Preemptive Rights.
No holder of any issued and outstanding share of Class A Common Stock,
Class B Common Stock or Preferred Stock shall, as such holder, have any
preemptive right in or right to purchase or subscribe for, any new or additional
shares of Class A Common Stock, Class B Common Stock and/or Preferred Stock, or
any shares of any other class or series of capital stock, or any obligations or
other rights or options to subscribe for or purchase, any capital stock of any
class of series, whether now or hereinafter authorized and whether issued by the
corporation for cash or other consideration or by way of dividends or other
distribution.
(7) Reverse Stock Split.
Effective as of the close of business on the date of filing of this
Amendment to the Articles of Incorporation (the "Effective Time"), provided that
such date is on or prior to January 30, 2002, the filing of this Amendment shall
effect a reverse stock split pursuant to which (a) each four (4) shares of Class
A Common Stock issued and outstanding shall be combined into one (1) validly
issued, fully paid and nonassessable share of Class A Common Stock, and (b) each
four (4) shares of Class B Common Stock issued and outstanding shall be combined
into one (1) validly issued, fully paid and nonassessable share of Class B
Common Stock. The number of authorized shares and the par value of the Class A
Common Stock and the Class B Common Stock shall not be affected by the reverse
stock split. The Corporation shall not issue fractional shares or scrip of
either Class A or Class B Common Stock as a result of the reverse stock split.
Instead, fractional shares of Class A and Class B Common Stock resulting from
such reverse stock split shall be rounded up to the next whole number. The
Corporation shall require each holder of record of issued and outstanding shares
of Class A or Class B Common Stock at the Effective Time (the "Pre-Split
Shares") to surrender for cancellation the certificate representing such shares
and receive certificates that the Corporation shall issue representing the
shares into which such Pre-Split Shares have been converted.
ARTICLE 5
The number of directors constituting the Corporation's initial Board
of Directors shall be two (2), and thereafter the number of directors shall be
such number (one or more) as
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may be fixed from time to time or at any time by, or in the manner provided in,
the Corporation's Bylaws. The names of the two (2) initial directors are as
follows:
John Swendrowski
Leroy Miles
ARTICLE 6
The address of the initial registered office of the Corporation is c/o
Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, in
Milwaukee County. The name of the Corporation's initial registered agent at such
address is Jeffrey J. Jones.
ARTICLE 7
These Articles of Incorporation may be amended pursuant to the Bylaws
of this Corporation and as authorized by law at the time of amendment.
ARTICLE 8
The name and address of the sole incorporator of this Corporation is
Todd B. Pfister, c/o Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202.
ARTICLE 9
Action required or permitted by the Wisconsin Business Corporation Law
to be taken at a shareholders' meeting may be taken without a meeting if a
written consent or consents, describing the action so taken, is signed by
shareholders who would be entitled to vote at a meeting those shares with voting
power to cast not less than the minimum number or, in the case of voting by
voting groups, numbers of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote were present and voted.
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ARTICLES OF AMENDMENT
relating to
SERIES A PREFERRED STOCK
of
NORTHLAND CRANBERRIES, INC.
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Pursuant to Sections 180.0602 and 180.1002
of the Wisconsin Business Corporation Law
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I, John Swendrowski, Chairman of the Board and Chief Executive Officer
of Northland Cranberries, Inc., a corporation organized and existing under the
Wisconsin Business Corporation Law (the "Corporation"), in accordance with the
provisions of Sections 180.0602 and 180.1002 thereof, DO HEREBY CERTIFY THAT:
A. Pursuant to the authority conferred upon the Board of Directors of
the Corporation by its Articles of Incorporation, as amended, and in accordance
with Sections 180.0602 and 180.1002 of the Wisconsin Business Corporation Law,
said Board of Directors adopted resolutions on November 1, 2001, creating a
series of Preferred Stock, $.01 par value per share, of the Corporation,
designated as Series A Preferred Stock.
B. Said resolutions of the Board of Directors of the Corporation
creating the series designated as Series A Preferred Stock provide that said
series shall have such designation and number of shares and such preferences,
limitations and relative rights as are set forth in the paragraphs below:
Series A Preferred Stock
1. Designation and Amount. The Corporation is authorized to issue a
series of Preferred Stock, which is hereby designated as "Series A Preferred
Stock." The number of shares of Series A Preferred Stock shall be limited to Two
Million (2,000,000). The par value of the Series A Preferred Stock shall be $.01
per share.
2. Dividends. If and when the Board of Directors declares a cash
dividend on the shares of Class A Common Stock, then the holders of Series A
Preferred Stock shall be entitled to receive, out of funds legally available
therefor, a cash dividend per share equal to the amount such holders would have
received had such holder converted his or its Series A Preferred Stock into
Class A Common Stock immediately prior to such distribution.
3. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of Series A Preferred Stock then outstanding
shall be entitled to receive out of the assets of the Corporation available for
distribution to its shareholders, in money or money's worth, after and subject
to the payment in full of all amounts required to be distributed to the holders
of any other Preferred Stock of the Corporation ranking on liquidation prior and
in preference to the Series A
Preferred Stock (such Preferred Stock being referred to hereinafter as "Senior
Preferred Stock"; provided that the Series B Preferred Stock ranks junior to the
Series A Preferred Stock and is therefore not Senior Preferred Stock) upon such
liquidation, dissolution or winding up, an amount equal to the amount such
holder would have received had such holder converted its Series A Preferred
Stock into Class A Common Stock immediately prior to such distribution. The
merger or consolidation of the Corporation into or with another corporation, the
merger or consolidation of any other corporation into or with the Corporation,
or the sale of all or substantially all the assets of the Corporation shall not
be deemed to be a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 3.
4. Voting. Each issued and outstanding share of Series A Preferred
Stock shall be entitled to the number of votes equal to the number of shares of
Class A Common Stock into which each such share of Series A Preferred Stock is
convertible (as adjusted from time to time pursuant to Section 5 and Section 6
hereof), at each meeting of shareholders of the Corporation (or pursuant to any
action by written consent) with respect to any and all matters presented to the
shareholders of the Corporation for their action or consideration. Except as
provided by law or by the provisions establishing any other series of Preferred
Stock, holders of Series A Preferred Stock shall vote together with the holders
of Common Stock as a single class.
5. Mandatory Conversion.
Immediately upon the effectiveness of an amendment to the
Corporation's Articles of Incorporation which has the effect of increasing the
number of shares of Class A Common Stock that the Corporation is authorized to
issue to a number sufficient to provide for the issuance of shares of Class A
Common Stock upon conversion of all of the then issued and outstanding shares of
Series A Preferred Stock in accordance with the terms hereof, each share of
Series A Preferred Stock shall be automatically converted into fully-paid and
nonassessable (except as provided by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law) shares of Class A Common Stock. The number of shares
of Class A Common Stock into which each share of Series A Preferred Stock is
convertible shall equal the Conversion Rate in effect at such time. The initial
Conversion Rate shall be twenty-five (25), subject to adjustment as provided in
Section 6 hereof. Upon such automatic conversion, all shares of Series A
Preferred Stock which shall have been converted as herein provided shall no
longer be deemed to be outstanding and all rights with respect to such shares,
including the rights, if any, to receive notices and to vote, shall forthwith
cease and terminate.
6. Anti-Dilution Provisions.
(a) The Conversion Rate shall be subject to adjustment from time to
time in accordance with this Section 6.
(b) In case the Corporation shall at any time (i) subdivide the
outstanding Class A Common Stock or (ii) issue a dividend on its outstanding
Class A Common Stock payable in shares of Class A Common Stock, the Conversion
Rate in effect immediately prior to such dividend or combination shall be
proportionately increased by the same ratio as the subdivision or dividend. In
case the Corporation shall at any time combine its outstanding Class
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A Common Stock, the Conversion Rate in effect immediately prior to such
combination shall be proportionately decreased by the same ratio as the
combination.
(c) If any capital reorganization or reclassification of the capital
stock of the Corporation, or consolidation or merger of the Corporation with
another corporation, or the sale of all or substantially all of its assets to
another corporation, shall be effected in such a way that holders of Class A
Common Stock shall be entitled to receive stock, securities, cash or other
property with respect to or in exchange for Class A Common Stock, then, as a
condition of such reorganization, reclassification, consolidation, merger or
sale, lawful and adequate provision shall be made whereby the holders of the
Series A Preferred Stock shall have the right to acquire and receive upon
conversion of the Series A Preferred Stock such shares of stock, securities,
cash or other property issuable or payable (as part of the reorganization,
reclassification, consolidation, merger or sale) with respect to or in exchange
for such number of outstanding shares of Class A Common Stock as would have been
received upon conversion of the Series A Preferred Stock at the Conversion Rate
then in effect.
7. No Sinking Fund. Shares of Series A Preferred Stock shall not be
entitled to any sinking fund.
8. Other Terms. Shares of Series A Preferred Stock shall be subject to
the other terms, provisions and restrictions set forth in the Articles of
Incorporation with respect to the shares of Preferred Stock of the Corporation.
C. No shares of Series A Preferred Stock have been issued as of the
date hereof.
D. The amendment creating the Series A Preferred Stock was adopted by
the Board of Directors of the Corporation in accordance with Section 180.1002 of
the Wisconsin Business Corporation Law and shareholder action was not required.
E. These Articles of Amendment shall be effective as of 9:01 a.m. on
November 5, 2001.
IN WITNESS WHEREOF, the undersigned has executed and subscribed these
Articles of Amendment on behalf of the Corporation and does affirm the foregoing
as true this 2nd day of November, 2001.
NORTHLAND CRANBERRIES, INC.
By: /s/John Swendrowski
-------------------------------------
John Swendrowski
Chairman of the Board and Chief
Executive Officer
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This instrument was drafted by and should be returned to Peter C. Underwood
of the firm of Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202.
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ARTICLES OF AMENDMENT
relating to
SERIES B PREFERRED STOCK
of
NORTHLAND CRANBERRIES, INC.
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Pursuant to Sections 180.0602 and 180.1002
of the Wisconsin Business Corporation Law
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I, John Swendrowski, Chairman of the Board and Chief Executive Officer
of Northland Cranberries, Inc., a corporation organized and existing under the
Wisconsin Business Corporation Law (the "Corporation"), in accordance with the
provisions of Sections 180.0602 and 180.1002 thereof, DO HEREBY CERTIFY THAT:
A. Pursuant to the authority conferred upon the Board of Directors of
the Corporation by its Articles of Incorporation, as amended, and in accordance
with Sections 180.0602 and 180.1002 of the Wisconsin Business Corporation Law,
said Board of Directors adopted resolutions on November 1, 2001, creating a
series of Preferred Stock, $.01 par value per share, of the Corporation,
designated as Series B Preferred Stock.
B. Said resolutions of the Board of Directors of the Corporation
creating the series designated as Series B Preferred Stock provide that said
series shall have such designation and number of shares and such preferences,
limitations and relative rights as are set forth in the paragraphs below:
Series B Preferred Stock
1. Designation and Amount. The Corporation is authorized to issue a
series of Preferred Stock, which is hereby designated as "Series B Preferred
Stock". The number of shares of Series B Preferred Stock shall be limited to 100
shares. The par value of the Series B Preferred Stock shall be $.01 per share.
2. Dividends. The corporation will not pay dividends to the holders of
the Series B Preferred Stock.
3. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of Series B Preferred Stock then outstanding
shall be entitled to receive out of the assets of the Corporation available for
distribution to its shareholders, in money or money's worth, after and subject
to the payment in full of all amounts required to be distributed to the holders
of any other Preferred Stock of the Corporation ranking on liquidation prior and
in preference to the Series B Preferred Stock (including, without limitation,
the Series A Preferred Stock), upon such liquidation, dissolution or winding up,
an amount equal to the Liquidation Value of each such Series B Preferred Stock.
4. Voting. Except as otherwise provided herein and as otherwise
required by applicable law, the Series B Preferred Stock shall have no voting
rights; provided that each holder of Series B Preferred Stock shall be entitled
to notice of all stockholders meetings at the same time and in the same manner
as notice is given to all stockholders entitled to vote at such meetings.
5. Redemptions.
(a) Redemption in Connection With Sun Exit Event. If a Sun Exit Event
has occurred, the Corporation will redeem each issued and outstanding share of
Series B Preferred Stock from each holder of the Series B Preferred Stock at a
price per share equal to a fraction, the numerator of which is the Formula
Amount and the denominator of which is one hundred (100).
(b) Redemption Payments. For each share of Series B Preferred Stock
which is to be redeemed hereunder, the Corporation shall be obligated within
five days of the Redemption Date to pay to the holders thereof (upon surrender
by such holders at the Corporation's principal office of the certificate
representing such share of Series B Preferred Stock) an amount in immediately
available funds equal to the amount calculated in accordance with Section 5(a).
If the funds of the Corporation legally available for redemption of Series B
Preferred Stock on the Redemption Date are insufficient to redeem the Series B
Preferred Stock, those funds which are legally available shall be used to redeem
the Series B Preferred Stock, unless such use would result in a breach by
Corporation of any of its financing agreements. At any time thereafter when
additional funds of the Corporation are legally available for the redemption of
the Series B Preferred Stock, and such use would not result in a breach by the
Corporation of any of its financing agreements, such funds shall immediately be
used to redeem the balance of the Series B Preferred Stock which the Corporation
has become obligated to redeem on the Redemption Date but which it has not
redeemed and, until such balance has been so redeemed in full, no Junior
Securities of the Corporation shall be redeemed and no dividends shall be paid
thereon. If within 30 days of the Redemption Date the Corporation has not paid
the holders of Series B Preferred Stock the full amount calculated in accordance
with Section 5(a), the amount not paid within 30 day period shall accrue simple
interest at the rate of the lesser of 12% per annum or the prime rate (as
announced within Wells Fargo at its principal office in San Francisco as its
"prime rate") plus 4% per annum.
6. No Sinking Fund. Shares of Series B Preferred Stock shall not be
entitled to any sinking fund.
7. Other Terms. Shares of Series B Preferred Stock shall be subject to
the other terms, provisions and restrictions set forth in the Articles of
Incorporation with respect to the shares of Preferred Stock of the Corporation.
8. Definitions. The following terms shall have the meanings specified:
"Formula Amount" means:
(a) if Sun's IRR is less than or equal to forty percent (40%), zero.
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(b) If Sun's IRR is greater than forty percent (40%) but less than or
equal to fifty percent (50%), ten percent (10%) of the difference
between the aggregate amount of Sun Proceeds minus what the
aggregate amount of Sun Proceeds would have been had Sun's IRR
been forty percent (40%);
(c) If Sun's IRR is greater than fifty percent (50%) but less than or
equal to sixty percent (60%), the sum of (i) fifteen percent
(15%) of the difference between the aggregate amount of Sun
Proceeds minus what the aggregate amount of Sun Proceeds would
have been had Sun's IRR been fifty percent (50%), plus (ii) ten
percent (10%) of the difference between what the aggregate amount
of Sun Proceeds would have been had Sun's IRR been fifty percent
(50%) minus what the aggregate amount of Sun Proceeds would have
been had Sun's IRR been forty percent (40%);
(d) If Sun's IRR is greater than sixty percent (60%) but less than or
equal to seventy percent (70%), the sum of (i) twenty percent
(20%) of the difference between the aggregate amount of Sun
Proceeds minus what the aggregate amount of Sun Proceeds would
have been had Sun's IRR been sixty percent (60%), plus (ii)
fifteen percent (15%) of the difference between what the
aggregate amount of Sun Proceeds would have been had Sun's IRR
been sixty percent (60%) minus what the aggregate amount of Sun
Proceeds would have been had Sun's IRR been fifty percent (50%),
plus (iii) ten percent (10%) of the difference between what the
aggregate amount of Sun Proceeds would have been had Sun's IRR
been fifty percent (50%) minus what the aggregate amount of Sun
Proceeds would have been had Sun's IRR been forty percent (40%);
(e) If Sun's IRR is greater than seventy percent (70%) but less than
or equal to eighty percent (80%), the sum of (i) twenty five
percent (25%) of the difference between the aggregate amount of
Sun Proceeds minus what the aggregate amount of Sun Proceeds
would have been had Sun's IRR been seventy percent (70%), plus
(ii) twenty percent (20%) of the difference between what the
aggregate amount of Sun Proceeds would have been had Sun's IRR
been seventy percent (70%) minus what the aggregate amount of Sun
Proceeds would have been had Sun's IRR been sixty percent (60%),
plus (iii) fifteen percent (15%) of the difference between what
the aggregate amount of Sun Proceeds would have been had Sun's
IRR been sixty percent (60%) minus what the aggregate amount of
Sun Proceeds would have been had Sun's IRR been fifty percent
(50%), plus (iv) ten percent (10%) of the difference between what
the aggregate amount of Sun Proceeds would have been had Sun's
IRR been fifty percent (50%) minus what the aggregate amount of
Sun Proceeds would have been had Sun's IRR been forty percent
(40%); and
(f) If Sun's IRR is greater than eighty percent (80%), the sum of (i)
thirty percent (30%) of the difference between the aggregate
amount of Sun Proceeds minus what the aggregate amount of Sun
Proceeds would have
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been had Sun's IRR been eighty percent (80%), plus (ii) twenty
five percent (25%) of the difference between what the aggregate
amount of Sun Proceeds would have been had Sun's IRR been eighty
percent (80%) minus what the aggregate amount of Sun Proceeds
would have been had Sun's IRR been seventy percent (70%), plus
(iii) twenty percent (20%) of the difference between what the
aggregate amount of Sun Proceeds would have been had Sun's IRR
been seventy percent (70%) minus what the aggregate amount of Sun
Proceeds would have been had Sun's IRR been sixty percent (60%),
plus (iv) fifteen percent (15%) of the difference between what
the aggregate amount of Sun Proceeds would have been had Sun's
IRR been sixty percent (60%) minus what the aggregate amount of
Sun Proceeds would have been had Sun's IRR been fifty percent
(50%), plus (v) ten percent (10%) of the difference between what
the aggregate amount of Sun Proceeds would have been had Sun's
IRR been fifty percent (50%) minus what the aggregate amount of
Sun Proceeds would have been had Sun's IRR been forty percent
(40%).
"Junior Securities" means, collectively, the Corporation's Class A
Common Stock, par value $.01 per share, and any capital stock of any class of
the Corporation hereafter authorized which is not limited to a fixed sum or
percentage of par or stated value in respect to the rights of the holders
thereof to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Corporation; the Corporation's
Series A Preferred Stock are not Junior Securities, and rank senior in
preference to the Series B Preferred Stock.
"Liquidation Value" means the par value.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Redemption Date" means the date of the Sun Exit Event.
"Sun" means Sun Northland, LLC.
"Sun Exit Event" means the consummation of a transaction the result of
which is (a) that immediately following such transaction neither Sun nor its
affiliates owns or controls securities possessing at least 10% of the voting
power of the Corporation or (b) the distribution of assets to holders of the
Corporation's capital stock upon the sale of all or substantially all of the
assets of the Corporation.
"Sun's IRR" means, as of any measurement date, the interest rate
(compounded annually) which, when used as the discount rate to calculate the net
present value as of the date hereof of the sum of (i) the aggregate amount of
all Sun Proceeds and (ii) the aggregate amount of all Sun Investments, causes
such net present value to equal zero. For purposes of the net present value
calculation, (A) Sun Proceeds shall be positive numbers, (B) Sun Investments
shall
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be negative numbers, (C) the Sun Proceeds and Sun Investments shall be deemed to
have been received or made on the first day of the month nearest to the actual
date of such receipt or payment, and (D) "the aggregate amount of all Sun
Proceeds" shall be net of all fees and expenses of any kind whatsoever,
including without limitation investment banking fees or management service fees
paid or payable to, or reimbursement of expenses of, Sun or any of its
affiliates.
"Sun Investments" means, as of any measurement date, the total amount
of cash, cash equivalents, promissory obligations, or the fair market value of
any other property (as determined by the Board of Directors of the Corporation
in the exercise of their good faith judgement) invested by Sun or its affiliates
in the securities of the Corporation; provided that the amount of the Sun
Investment on the date hereof is $7,000,000.
"Sun Proceeds" means, as of any measurement date, total amount of cash
received by Sun or its affiliates in connection with a sale of securities of the
Corporation or dividend, interest or other distribution made by the Corporation
with respect to securities of the Corporation; provided that in the event Sun or
its affiliates receives property other than cash in connection with any of the
foregoing, such property shall become Sun Proceeds on the date that it is sold,
exchanged, transferred or otherwise converted into cash.
C. No shares of Series B Preferred Stock have been issued as of the
date hereof.
D. The amendment creating the Series B Preferred Stock was adopted by
the Board of Directors of the Corporation in accordance with Section 180.1002 of
the Wisconsin Business Corporation Law and shareholder action was not required.
IN WITNESS WHEREOF, the undersigned has executed and subscribed these
Articles of Amendment on behalf of the Corporation and does affirm the foregoing
as true this 2nd day of November, 2001.
NORTHLAND CRANBERRIES, INC.
By: /s/John Swendrowski
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John Swendrowski
Chairman of the Board and Chief
Executive Officer
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This instrument was drafted by and should be returned to Peter C.
Underwood of the firm of Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202.
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