Exhibit 3.4
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
January 8, 1997
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 Sixty-Nine Million
(69,000,000) shares, consisting of: (i) Sixty Million (60,000,000) shares
of a class designated as "Class A Common Stock," with a par value of one
cent ($.01) per share; (ii) Four Million (4,000,000) shares of a class
designated as "Class B Common Stock," with a par value of one cent ($.01)
per share; and (iii) Five Million (5,000,000) shares of a class designated
as "Preferred Stock," with a par value of one cent ($.01) 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 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 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 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 splitups 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 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.
(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.
(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.
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 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.