EXHIBIT 4.1
CENEX HARVEST STATES COOPERATIVES
CERTIFICATE OF DESIGNATIONS
8% PREFERRED STOCK
The undersigned, being the President and Chief Executive Officer of Cenex
Harvest States Cooperatives (the "Company"), a cooperative organized and
existing under the Minnesota Cooperative Law, does hereby certify that, pursuant
to the authority vested in the Board of Directors of the Company by the Articles
of Incorporation of the Company, the Board of Directors on July 12, 2001, duly
adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Company (the "Board of Directors") by the Articles of Incorporation of
the Company, the Board of Directors hereby establishes a series of 8% Preferred
Stock of the Company and hereby states the designation and fixes the relative
rights, preferences, privileges and limitations of such series of shares as
follows:
8% PREFERRED STOCK
SECTION 1. DESIGNATION; BOOK-ENTRY FORM. The shares of such series shall be
designated as 8% Preferred Stock (the "Preferred Stock"). The number of shares
of Preferred Stock shall be 50,000,000 and may be issued by the Company from
time to time. The Company shall not issue any share of Preferred Stock at a
price less than $1.00. The Preferred Stock shall be issued as uncertificated
shares registered in book-entry form.
SECTION 2. RANK. The Preferred Stock shall rank prior to: (1) any
instrument, whether certificated or not, that represents a "patronage refund"
(as that term is used in the Company's Bylaws), (2) any other class or series of
capital stock designated by the Board of Directors as inferior to the Preferred
Stock and (3) common stock, if any, of the Company (collectively, "Junior
Securities"), both as to payment of dividends and as to distributions of assets
upon the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary. The Preferred Stock shall rank junior to any class or
series of capital stock designated by the Board of Directors as senior to the
Preferred Stock ("Senior Securities") both as to payment of dividends and as to
distributions of assets upon the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary. Unless otherwise designated herein or
by the Board of Directors, any other class or series of capital stock of the
Company shall rank pari passu with the Preferred Stock.
SECTION 3. DIVIDENDS AND DISTRIBUTIONS.
a. PAYMENT OF DIVIDENDS. The holders of shares of Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for such purpose, dividends at the rate of 8% per
annum per share. Such dividends shall be fully cumulative and shall accumulate
without interest from the date of original issuance of any share of Preferred
Stock . Holders of shares of Preferred Stock owning 10,000 or more shares shall
receive monthly dividends, when declared by the Board of Directors, payable on
the first day of each calendar month (the "Monthly Payment Date") commencing, as
to any share, the first day of the month following its date of issuance,
provided that any such Monthly Payment Date is a Business Day. All other holders
of shares of Preferred Stock shall be entitled to receive quarterly dividends,
when declared by the Board of Directors, payable on the first day of September,
December, March and June (each such date a "Quarterly Payment Date"),
commencing, as to any share, the first day of the quarter following its date of
issuance, provided that any such Quarterly Payment Date is a Business Day. A
Business Day is any day that is not a Saturday, Sunday or a legal holiday. If
any Quarterly or Monthly Payment Date is not a Business Day, such dividend shall
be payable without interest on the next Business Day. Quarterly dividends shall
be paid only to the extent that monthly dividends have been declared and paid.
Dividends on the Preferred Stock shall be paid by check or electronic transfer
to holders of record as they appear on the books of the Company on such record
dates as shall be fixed by the Board of Directors. Record dates shall be not
more than 60 nor less than one day preceding the respective Payment Dates. In
the event that the Board of Directors does not fix a record date in connection
with the payment of any dividend, the record date for such dividend shall be
five Business Days prior to the respective Quarterly or Monthly Payment Date.
The amount of dividends payable for the initial dividend period and for any
other dividend period shall be computed on the basis of a 365-day year.
b. LIMITATIONS ON DISTRIBUTIONS TO HOLDERS OF JUNIOR SECURITIES. No
distributions shall be made by the Company to the holders of any Junior Security
unless and until all accumulated and unpaid dividends on the Preferred Stock and
on any class or series of capital stock ranking on parity with the Preferred
Stock, including the full dividend for the then-current dividend period, shall
have been paid or declared and set apart for payment.
Any reference to a "distribution" contained in this Section 3 shall
not be deemed to include any distribution made in connection with a liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary. The
rights of holders of Preferred Stock upon a distribution made in connection with
a liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, are governed by Section 4 below.
SECTION 4. LIQUIDATION PREFERENCE. In the event of a liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, the
holders of Preferred Stock shall be entitled to receive out of the assets of the
Company available therefor an amount equal to the dividends accumulated and
unpaid thereon to the date of final distribution to such holders, whether or not
declared, without interest, plus a sum equal to $1.00 per share, and no more,
before any payment shall be made or any assets distributed to the holders of any
Junior Security. The entire assets of the Company available for distribution
after the liquidation preferences of any Senior Securities are fully met shall
be distributed ratably among the holders of the Preferred Stock and any other
capital stock of the Company which ranks on a parity as to liquidation rights
with the Preferred Stock in proportion to the respective preferential amounts to
which each is entitled (but only to the extent of such preferential amounts).
After payment in full of the liquidation preference of the shares of the
Preferred Stock, the holders of such shares shall not be entitled to any further
participation in any distribution of assets by the Company. Neither a
consolidation or merger of the Company with another corporation nor a sale or
transfer of all or part of the Company's assets for cash, securities or other
property will be deemed a liquidation, dissolution or winding up of the Company
for purposes of this Section 4; provided that, following such a consolidation
or merger, or sale or transfer of all or part of the Company's assets, the
Preferred Stock remain outstanding as duly authorized stock of the Company or
any successor entity.
SECTION 5. REDEMPTION AT OPTION OF THE COMPANY. The Company, at its option,
may redeem at any time all, or from time to time any portion, of the Preferred
Stock upon 30 days' written notice. Any Preferred Stock redeemed by the Company
shall be redeemed at a price of $1.00 per share plus an amount per share in cash
equal to all dividends on such share of the Preferred Stock accumulated and
unpaid, whether or not declared, to the date fixed for redemption (such sum
being hereinafter referred to as the "Redemption Price").
In case of the redemption of less than all of the then outstanding
Preferred Stock, the Company shall designate by lot, or in such other manner as
the Board of Directors may determine, the shares to be redeemed, or shall effect
such redemption pro rata. Notwithstanding the foregoing, the Company shall not
redeem less than all of the Preferred Stock at any time outstanding until all
dividends accumulated and in arrears upon all Preferred Stock then outstanding
shall have been paid for all past dividend periods.
Not less than 30 days prior to the redemption date, notice by first class
mail, postage prepaid, shall be given to the holders of record of the Preferred
Stock to be redeemed, addressed to such shareholders at their last addresses as
shown on the stock books of the Company. Each such notice of redemption shall
specify the date fixed for redemption, the redemption price, that accumulated
but unpaid dividends to the date fixed for redemption will be paid on the date
fixed for redemption, and that on and after the redemption date, dividends will
cease to accumulate on such shares.
Any notice that is mailed as herein provided shall be conclusively presumed
to have been duly given, whether or not a holder of the Preferred Stock receives
such notice; and failure so to give such notice, or any defect in such notice,
to the holders of any shares designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of Preferred
Stock. On or after the date fixed for redemption as stated in such notice, the
Company shall pay to each holder of the shares called for redemption the
Redemption Price by check or electronic transfer. If, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall have been irrevocably deposited or set aside, then the dividends with
respect to the shares so called shall cease to accumulate on and after the date
fixed for redemption, such shares shall no longer be deemed outstanding, the
holders thereof shall cease to be shareholders, and all rights whatsoever with
respect to such shares (except the right of the holders thereof to receive the
Redemption Price without interest) shall terminate.
2
SECTION 6. VOTING RIGHTS. The holders of Preferred Stock shall have only
the voting rights described in Section 7 below or as otherwise from time to time
required by law.
SECTION 7. CERTAIN ACTIONS NOT TO BE TAKEN WITHOUT VOTE OF HOLDERS OF
PREFERRED STOCK. The affirmative vote or consent of the holders of at least a
majority of the outstanding shares of the Preferred Stock, voting separately as
a class, shall be required for any amendment, alteration or repeal, whether by
merger or consolidation or otherwise, of the Company's Articles of Incorporation
(including any board resolution establishing any class or series of preferred
stock of the Company) if the amendment, alteration or repeal adversely affects
the rights or preferences of the Preferred Stock; provided, however, that any
increase in the authorized preferred stock of the Company or the creation and
issuance of any other capital stock of the Company ranking senior to, on a
parity with or junior to the Preferred Stock shall not be deemed to materially
affect such powers, preferences or special rights.
SECTION 8. OUTSTANDING SHARES. For purposes of this resolution, all shares
of Preferred Stock shall be deemed outstanding except for (a) shares of
Preferred Stock held of record or beneficially by the Company or any subsidiary
of the Company and (b) all shares of Preferred Stock which have been called for
redemption, provided that funds necessary for such redemption are available
therefor and have been irrevocably deposited or set aside for such purpose.
SECTION 9. STATUS OF PREFERRED STOCK UPON RETIREMENT. Shares of Preferred
Stock which are acquired or redeemed by the Company shall return to the status
of authorized and unissued shares of preferred stock of the Company without
designation as to series. Upon the acquisition or redemption by the Company of
all outstanding shares of Preferred Stock, all provisions of this Certificate of
Designations shall cease to be of further effect.
SECTION 10. TRANSFER RIGHTS. The Board of Directors has expressly
authorized the sale and transfer of the shares of Preferred Stock, provided
that, in connection with such transfer, the transferee may be required to
provide the Company with information that it reasonably requests.
CENEX HARVEST STATES COOPERATIVES
By /s/ John D. Johnson
-----------------------------------------
John D. Johnson
President and Chief Executive Officer
3