As filed with the Securities and Exchange Commission on July 22, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
NORTHLAND CRANBERRIES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 0171 39-1583759
(State of (Primary Standard Industrial (I.R.S. Employer
incorporation) Classification Code Number) Identification No.)
800 First Avenue South
Wisconsin Rapids, Wisconsin 54494
(715) 424-4444
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_______________________
John A. Pazurek
Vice President-Finance and Treasurer
Northland Cranberries, Inc.
800 First Avenue South
Wisconsin Rapids, Wisconsin 54494
(715) 424-4444
Facsimile (715) 422-6800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
Copy to:
Steven R. Barth, Esq
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 297-5662
Facsimile: (414) 297-4998
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box [_]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Maximum Maximum
Class of Offering Aggregate Amount of
Securities to be Amount to be Price per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee
Class A Common
Stock, $.01 par
value . . . . . . 500,000 $28.125 $14,062,500 $4,850
(1) The Company's Board of Directors declared a two-for-one stock split
to be effected in the form of a 100% stock dividend to be distributed
on September 3, 1996 to holders of Class A Common Stock of record at
the close of business on August 15, 1996. On the date of such
distribution, the amount to be registered hereunder will increase
from 500,000 shares to 1,000,000 shares.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based on the average high and low sales
prices of the Class A Common Stock reported by the Nasdaq National
Market on July 18, 1996.
_________________________
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
_________________________
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
NORTHLAND CRANBERRIES, INC.
FORM S-4 REGISTRATION STATEMENT
CROSS REFERENCE SHEET
(Pursuant to item 501(b) of Regulation S-K, showing the
location in the Prospectus of the information required to be included
therein in response to the Items of Part I of Form S-4)
Form S-4
Item Prospectus Caption or
Number Item Description Location in Prospectus
1. Forepart of the Registration Outside Front Cover Page
Statement and Outside Front of Prospectus
Cover Page of Prospectus
2. Inside Front and Outside Inside Front and Outside
Back Cover Pages of Back Cover Page of
Prospectus Prospectus; Available
Information
3. Risk Factors, Ratio of Cover Page; The Company;
Earnings to Fixed Charges Incorporation of Certain
and Other Information Information by Reference
4. Terms of the Transaction *
5. Pro Forma Financial *
Information
6. Material Contracts with *
Company Being Acquired
7. Additional Information Outstanding Securities
Required for Reoffering by Covered by This Prospectus
Persons and Parties Deemed
to be Underwriters
8. Interests of Named Experts Validity of Securities;
and Counsel Experts
9. Disclosure of Commission **
Position on Indemnification
for Securities Act
Liabilities
10. Information With Respect to The Company; Incorporation
S-3 Registrants of Certain Information by
Reference
11. Incorporation of Certain Incorporation of Certain
Information By Reference Information By Reference
12. Information with Respect to **
S-2 or S-3 Registrants
13. Incorporation of Certain **
Information By Reference
14. Information with Respect to **
Registrants Other Than S-3
or S-2 Registrants
15. Information with Respect to **
S-3 Companies
16. Information with Respect to **
S-2 or S-3 Companies
17. Information with Respect to *
Companies Other Than S-3 or
S-2 Companies
18. Information if Proxies, *
Consents or Authorizations
are to be Solicited
19. Information if Proxies, *
Consents or Authorizations
are not to be Solicited or
in an Exchange Offer
_______________________
* Inapplicable in connection with the filing of this Registration
Statement. Information, however, may be included in subsequent post-
effective amendments filed under certain circumstances pursuant to
General Instruction H of Form S-4 or in one or more prospectus
supplements, filed pursuant to Rule 424(b)(2) under the Securities
Act of 1933, as amended.
** Not applicable or answer is negative.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be
any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
Subject to Completion
July 22, 1996
PROSPECTUS 500,000 Shares
[LOGO]
Class A Common Stock
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMIS-
SION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
________________________
This Prospectus covers shares of Class A Common Stock, $.01 par
value (the "Class A Common Stock") which may be offered and issued by
Northland Cranberries, Inc. (the "Company") from time to time in
connection with the merger with or acquisition by the Company, directly or
indirectly, of businesses or properties. It is expected that the terms of
acquisitions involving the issuance of securities covered by this
Prospectus will be determined by direct negotiations with the owners or
controlling persons of the businesses or properties to be merged with or
acquired by the Company, and that the shares of Class A Common Stock
issued will be valued at prices reasonably related to market prices
current either at the time a merger or acquisition is agreed upon or at or
about the time of delivery of shares. No underwriting discounts or
commissions will be paid, although finder's fees may be paid from time to
time with respect to specific mergers or acquisitions. Any person
receiving any such fees may be deemed to be an Underwriter within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
With the written consent of the Company, this Prospectus, as
amended or supplemented if appropriate, has also been prepared for use by
persons who have received or will receive, from the Company, Class A
Common Stock covered by this Prospectus in connection with mergers or
acquisitions and who may wish to sell such stock under circumstances
requiring or making desirable its use. See "Outstanding Securities
Covered by this Prospectus" for information relating to resales pursuant
to this Prospectus of shares of Class A Common Stock issued under the
Registration Statement.
At July 10, 1996, the Company had 6,367,143 shares of its Class
A Common Stock outstanding. These shares are listed on the Nasdaq
National Market ("NASDAQ"). The shares offered hereby have been approved
for quotation on NASDAQ. On July 19, 1996, the last sale price of the
Class A Common Stock on NASDAQ was $28-1/2 per share.
All expenses of this offering will be paid by the Company.
The date of this Prospectus is _______, 1996.
<PAGE>
THE COMPANY
The Company is the world's largest cranberry grower, with more
planted acres of cranberries owned or leased than any other grower. The
Company owns or leases over 2,300 planted acres of cranberries at numerous
marsh locations in Wisconsin and Massachusetts. In fiscal 1996 the
Company harvested approximately 1,900 acres which produced 287,000
barrels, representing approximately 6% of the total cranberries harvested
in the world. In each of the past three years, the Company sold
substantially all of its crop harvested for processing to two independent
fruit juice and sauce processors for their packaging and resale as private
label cranberry juice and sauce, pursuant to contracts which expired on
March 31, 1996.
In 1993 the Company first implemented its "from marsh to market"
vertical integration business strategy when it began selling its own
Northland/R/ brand fresh cranberries. In August 1995, the Company
announced that it would further this strategy by marketing and selling its
own Northland brand 100% cranberry juice blends, and other processed
consumer branded and private label cranberry products. This initiative
was implemented in October 1995 when the Company introduced its Northland
brand 100% cranberry juice blends into Wisconsin markets. To date, the
Company's premium cranberry juice has penetrated virtually all Wisconsin
markets, a significant portion of the Chicago metropolitan market and 17
other major retail marketing areas located primarily throughout the
Midwest and Great Lakes regions.
In February 1996, the Company entered into a three-year product
supply agreement with Rudolf Wild GmbH & Co. of Heidelberg, Germany
("Wild"), one of Europe's largest suppliers of natural compounds for the
production of soft drinks and other beverages containing fruit, pursuant
to which the Company will supply cranberry concentrate to Wild.
The term "Company" refers to Northland Cranberries, Inc., a
Wisconsin corporation and its subsidiaries, affiliates and predecessors,
unless the context requires otherwise. The executive offices of the
Company are located at 800 First Avenue South, Wisconsin Rapids, Wisconsin
54494. The telephone number is (715) 424-4444.
RISK FACTORS
In addition to the other information contained or incorporated
by reference in this Prospectus, prospective investors should carefully
consider the following risk factors in evaluating the Company and its
business before determining whether to accept as consideration shares of
the Class A Common Stock offered hereby. Certain matters discussed in
this Prospectus or incorporated herein by reference are forward-looking
statements that involve risks and uncertainties, including particularly
sentences which include words such as the Company "believes,"
"anticipates," "expects" or words of similar import. With respect to such
statements, the Company claims the protection of the disclosure liability
safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1955. Such statements are subject to
certain risks and uncertainties, including particularly those important
factors set forth below, that could cause actual results to differ
materially from those projected. Potential investors are cautioned not to
place undue reliance on such forward looking statements, which are made
only as of the date hereof. The Company undertakes no obligations to
publicly update or release the results of any revision to such forward
looking statements that may be made to reflect events or circumstances
after the date hereof or to reflect the occurrence of subsequent events.
Readers are cautioned that the following important Risk Factors, in
addition to those discussed elsewhere or incorporated by reference herein,
could affect the future results of the Company and cause those results to
differ materially from those expressed in such forward-looking statements.
Untested Business Strategy
The Company's experience in the business of marketing and
selling value-added processed consumer cranberry products began, on a
limited basis, in 1993 when it first marketed its own Northland brand
fresh cranberries and was furthered during the Company's 1996 fiscal year
through the sale of its Northland brand 100% cranberry juice blends. The
business of marketing and selling consumer cranberry products involves
substantial risk and there can be no assurance that the Company will be
able to manage or sustain its very limited success in this field to date.
Important to the success of Northland's strategy is its belief that the
demand for cranberry products will exceed the available supply of raw
cranberries for at least the next several years and that the redirection
of its own internal supply of raw cranberries (and the raw cranberries it
purchases from other growers) into its own cranberry products will not
increase the overall supply of consumer cranberry products. If the
Company's assessment of the cranberry market is incorrect, the Company's
internal cranberry supply may not create the benefits and competitive
advantages currently anticipated by the Company, which could have a
material adverse effect on its results of operations and financial
condition. See " -- Cranberry Market; Supply and Demand" below.
While the Company has key employees who have experienced the
product introduction and sale of its Northland brand fresh cranberries and
Northland brand premium cranberry juice blends, the Company's management
and employees have limited experience and expertise in the consumer
beverage and fruit products businesses. Although the Company has a
Director of Sales with juice and beverage industry experience, there can
be no assurance that the Company will be able to successfully hire
additional qualified personnel or, if hired, retain and integrate such
personnel into the Company's operations.
Cranberry Market; Supply and Demand
An oversupply of cranberries could have a depressing effect on
the pricing of raw cranberries and consumer cranberry products. The
supply of raw cranberries increased over the last several years,
principally due to the maturation of new acreage planted in the United
States as a result of growers obtaining permits prior to the enactment in
1990 of the current regulations restricting the further new development of
wetland acreage. However, apart from this general trend toward increasing
supply, annual cranberry production can fluctuate significantly from year
to year depending on agricultural conditions, which can cause dramatic
increases or decreases in the overall annual supply of raw cranberries.
After 1996, the Company anticipates that additional maturing acreage in
the United States will decrease due to the impact of current regulations
which became effective in 1990 and restricted the issuance of new permits
to allow the further commercial development of wetland acreage. However,
there can be no assurance that future federal or state legislation easing
the current regulatory restrictions on wetland development will not be
enacted. Moreover, although the Company believes that new commercial
development of cranberry acreage has been limited in Canada because of its
federal "no net loss of wetlands" policy (which has also been adopted by
most provinces), there is no available data on the extent of new cranberry
acreage development in Canada. Such development could be substantial.
Additionally, to date, substantially all of the world's raw cranberries
have been grown in North America. In recent years, however, increased
attention has been directed at attempts to grow cranberries in locations
outside North America and on non-wetland properties. Over the longer-
term, there can be no assurance that cranberry production outside North
America or on non-wetland properties will not become significant.
The Company believes that the demand for cranberry products has
also increased substantially over recent years and has generally exceeded
the supply of raw cranberries. While the Company believes that the demand
for cranberry products at current market prices will continue to exceed
the supply of raw cranberries for the next several years, there can be no
assurance that the supply of raw cranberries will not increase to meet or
exceed market demand or that demand will not decline. Increasing demand
for cranberry products, however, may depend on continued heavy advertising
expenditures and expanded new cranberry product introductions by Ocean
Spray and other branded juice product companies. Additionally, changes in
consumer perceptions of the relative healthfulness or safety of
cranberries generally could have a material adverse effect on the demand
for consumer cranberry products and result in significant changes in
cranberry prices.
Competition
General
The markets in which the Company has competed and will compete
are large and very competitive. Many of the Company's current and
prospective competitors have substantially greater financial, marketing,
production and/or distribution resources than the Company and, except in
the areas of cranberry growing and fresh fruit sales, substantially more
experience in the production, marketing, distribution and sale of
cranberry and other consumer products. The Company is subject to
substantial competition with respect to the sale of consumer cranberry
products, the sale of fresh cranberries and, to a lesser extent, the
purchase of raw cranberries. Moreover, the competitive success of the
Company's products will depend on consumers' perceptions of their quality
and appearance as compared to competitive products.
Raw Cranberry Market
Ocean Spray dominates the raw cranberry market. Ocean Spray is
an agricultural marketing cooperative that enjoys limited protection under
the United States anti-trust laws. Northland competes in the market for
purchasing raw cranberries with other independent cranberry product
handlers and processors for the raw cranberries of other independent
growers. The Company could also experience competition for the purchase
of raw cranberries from Ocean Spray to the extent Ocean Spray accepts new
member growers. The Company believes that competition for the purchase of
raw cranberries in the independent market may increase as a result of the
Company's current business strategy.
Branded Products Market
Ocean Spray also dominates the branded consumer cranberry
products market. Ocean Spray has significantly more experience in the
fruit juice and branded processed cranberry products markets,
substantially greater brand name recognition and substantially greater
marketing, distribution and financial resources than the Company. There
can be no assurance that the Company will be successful in competing
against Ocean Spray.
Private Label Cranberry Products Market
The market for private label cranberry juice, sauce and other
processed cranberry products has been supplied primarily by two
independent processors, as well as a limited number of other independent
raw cranberry brokers and private label juice processors and marketers.
These processors have significant experience in the private label fruit
juice and processed cranberry products markets and have well established
co-packing and bottling operations, distributor networks and customer
bases that may be greater than those of the Company or other co-packers
that may enter into an alliance with Northland. There can be no assurance
that the Company will be successful in competing directly or indirectly
against these processors. Moreover, private label cranberry products in
general compete against branded cranberry products and, in particular, the
branded cranberry products of Ocean Spray. There can be no assurance that
any private label processed cranberry products of the Company or its
allied co-packers will be able to successfully compete against the similar
branded products of Ocean Spray or others.
Fresh Cranberry Market
The Company already experiences significant direct competition
from Ocean Spray in the fresh cranberry market. Ocean Spray has
significantly greater marketing, distribution and financial resources than
the Company and there can be no assurance that the Company will be able to
continue to compete successfully against Ocean Spray in the fresh fruit
market.
Seasonality
While the Company believes that the implementation of its
current business strategy has reduced the extreme seasonality of its
previous business, there can be no assurance that this will continue and,
in any event, it is expected that the Company's results of operations will
continue to experience significant seasonality as a result of the
traditionally heavier consumer demand for juice products during the summer
months and the increased Thanksgiving and Christmas season holiday demand
for fresh cranberries and other processed cranberry products.
Agricultural Factors; Crop Insurance
Northland's cranberry production and current results of
operations are subject to the variable effects of weather, crop disease,
insect infestation, animal damage, hail and storm damage and water
adequacy. These factors can also affect the storage and selling quality
of Northland's crop, as well as the quantity and quality of raw
cranberries to be purchased by the Company from other growers.
Significant reductions in annual per acre yields can result from any of
these factors being unfavorable on the Company's marshes and such
reductions can have, and have had, a material adverse effect on the
Company's results of operations. As a result, the Company's crop yields
and production on its individual marshes and on an aggregate basis can and
do fluctuate widely from year to year. Additionally, weather conditions
and the other agricultural factors described above have delayed by
approximately one growing season the development and maturation of
Northland's cranberry vines planted within the last five years.
While the Company's present federal multi-peril crop insurance
coverage provides protection against reduced harvests resulting from
adverse growing conditions and hail and storm damage, such policies insure
only up to 75% of the previous 10 years' average historical yield from the
affected marsh and will reimburse the Company at an effective rate of $52
per barrel of insured lost production this crop year (substantially below
the price which could have been received by actually harvesting and
delivering or selling such barrel). These reimbursement rates do not and
will not take into account or cover the increasing yields expected from
newly maturing acreage or the anticipated higher per barrel proceeds which
the Company may otherwise achieve by selling its cranberries as fresh
fruit or as branded or private label consumer products. These insurance
policies also do not cover destruction or spoilage of the Company's crop
after its harvest.
Dependence on Key Personnel
The Company is dependent on certain key management personnel,
particularly its President and Chief Executive Officer, John Swendrowski.
The Company does not maintain key man life insurance on, or have
employment agreements for current employment with, any of its management
personnel. The Company's future success will depend, in part, on its
ability to retain its management personnel and integrate new management
personnel into the Company's operations.
Processing and Delivery
The Company's principal processing and storage facility and its
concentrating facility are located in Wisconsin Rapids, Wisconsin. The
Company also operates a smaller processing facility in Hanson,
Massachusetts for its Massachusetts-grown cranberry crop. In the event of
a fire or other natural disaster, regulatory actions or other causes,
particularly if such incidents occurred during or shortly after the annual
fall cranberry harvest, the Company's inventory of cranberries at such
affected facility would be subject to loss and the Company might be unable
to receive and process harvested berries at such facility, supply
concentrate (if the event affected the Wisconsin Rapids facility) or
process or ship fresh cranberries from such facility. Although the
Company has business interruption insurance believed to cover most such
circumstances, such an interruption of business could materially and
adversely affect the Company's results of operations.
The Company intends to enter into contractual arrangements with
various providers of materials and services required to produce, package,
market and distribute the Company's processed cranberry products, such as
co-packers, food and beverage brokers and transportation companies.
Accordingly, the Company will rely on a limited number of providers and as
a result, poor performance by or the loss of any such provider could have
a material adverse effect on the Company's results of operations,
especially in the short-term.
Regulation
As a result of the significant regulatory restrictions in the
United States governing the development of wetlands (the preferred growing
habitat for cranberries), it is unlikely the Company, or any other
cranberry growers or developers in the United States, in the near future
will be able to cost-effectively secure additional permits for further
significant cranberry marsh expansion on wetland properties. While a
recent legislative proposal adopted by the United States House of
Representatives attempts to ease these restrictions in certain respects,
in its current form such legislation does not preempt state regulation of
wetlands development and, therefore, may not significantly affect current
restrictions in the United States. The Company is unable to predict the
likelihood of enactment of such legislation, what form the proposed
legislation may finally take or what impact any such enacted legislation
will have on the ability to develop new cranberry marshes. If the current
proposal is enacted in a manner which would materially ease restrictions
on the development of cranberry marshes, it could lead to an increase in
long-term supply which, if not exceeded by demand, could have a depressing
effect on the pricing of cranberries and cranberry products. While the
Government of Canada and most of Canada's provinces have "no net loss"
policies restricting the development of wetlands, the impact of such
policies on development of wetlands for cranberry production is uncertain.
See " -- Cranberry Market; Supply and Demand" above.
The production, packaging, labeling, marketing and distribution
of the Company's fresh cranberries and planned processed consumer
cranberry products are and will be subject to the rules and regulations of
various federal, state and local food and health agencies, including the
United States Food and Drug Administration, the United States Department
of Agriculture, the Federal Trade Commission and the Environmental
Protection Agency ("EPA"). The Company believes it has and will be able
to comply in all material respects with such rules, regulations and laws.
However, there can be no assurance that future compliance with such rules,
regulations and laws will not have a material adverse effect on the
Company's results of operations and financial condition.
Under the provision of the Agricultural Marketing Agreement Act,
a Cranberry Marketing Order was adopted in 1974. This order established
the Cranberry Marketing Committee of the United States Department of
Agriculture ("CMC"), which is charged with developing a domestic marketing
policy by March 1 of each year and making recommendations concerning the
allowable supply of cranberries for such year. If the CMC determines that
the supply and demand of cranberries will result in unstable market
conditions for the forthcoming crop year, the CMC can recommend that the
United States Secretary of Agriculture implement a grower allocation
program pursuant to the Cranberry Marketing Order. The provisions
available for such implementation permit the Secretary to regulate the
amount of cranberries which "handlers," such as Ocean Spray and the
Company, can accept from growers for domestic marketing. The CMC's
jurisdiction is limited to areas within the United States. Therefore, the
Company believes that any such order would not affect international
allocations or sales. The CMC has never recommended that the Secretary
implement an allocation program. However, similar provisions in effect
prior to 1974 enabling the Secretary to limit the marketing of cranberries
were implemented on three occasions, most recently in 1971. There can be
no assurance that the CMC will not determine that the relative supply and
demand characteristics require such a grower allocation program in the
future, and that, therefore, limitations on the amount of cranberries
produced and allotments on growers would be imposed. If such limitations
or allotments are imposed on growers, they could have a material adverse
effect on the Company's results of operations and financial condition.
In January 1996, the EPA granted "treatment as a state" status
to the Lac du Flambeau Band of Lake Superior Chippewa Indians pursuant to
Section 518 of the federal Clean Water Act, 42 U.S.C. Section 1377.
This status allows the Lac du Flambeau Band to set water quality standards
within its reservation boundaries and to administer certain other
provisions of the Clean Water Act. The EPA has taken the position that
off-reservation dischargers must ensure that any discharges entering
reservation waters comply with tribal standards. Although the Company
owns no marshes within the exterior boundaries of the Lac du Flambeau
reservation and thus is not subject to direct tribal regulation, one of
its marshes is located near the reservation and thus its operations could
be impacted adversely by future tribal water quality standards. Any
proposed water quality standards developed by the Lac du Flambeau under
the Clean Water Act will require EPA approval. No such standards have
been adopted or approved as of the date of this Prospectus, and the
Company cannot predict the timing, content, or impact of any potential
future standards. It is possible that the Company could be required to
incur significantly increased costs in ensuring that its operation located
near the reservation does not violate applicable tribal water quality
standards.
Concentration of Ownership; Anti-takeover Considerations
As of July 10, 1996, the current directors and executive
officers of the Company in the aggregate controlled 20.7% of the combined
voting power of the Class A and Class B Common Stock, including all of the
outstanding shares of Class B Common Stock. The shares of Class B Common
Stock are entitled to three votes per share on all matters submitted to a
vote of shareholders and the shares of Class A Common Stock are entitled
to one vote per share on all such matters. As of July 10, 1996, John
Swendrowski, the President and Chief Executive Officer of the Company,
controlled 15.6% of the combined voting power of the Class A and Class B
Common Stock. See "Description of Capital Stock".
The voting power of the Company's Class A and Class B Common
Stock controlled by the Company's directors and officers in the aggregate,
along with the existence of the Class B Common Stock, the voting trust and
the shareholders agreement, as well as the Board of Directors' ability to
issue, without shareholder approval, Preferred Stock upon such terms and
conditions as it may determine and additional Class A Common Stock, could
preclude, or make it more difficult to effect, an acquisition of the
Company which is not on terms acceptable to the Company's Board of
Directors and management. Additionally, the foregoing could also have the
effect of enhancing the ability of the Board of Directors and management
to maintain their positions with the Company. See "Description of Capital
Stock."
As described under "Description of Capital Stock -- Certain
Statutory Provisions," the Wisconsin Business Corporation Law contains
several statutory provisions which could also have the effect of
discouraging non-negotiated takeover proposals for the Company or impeding
a business combination between the Company and a major shareholder of the
Company. Such provisions include (i) limiting the voting power of certain
shares of certain public corporations which are held by a person in excess
of 20% of the corporations' voting power to 10% of the full voting power
of such excess shares; (ii) requiring a super-majority vote of
shareholders, in addition to any vote otherwise required, to approve
certain business combinations not meeting certain adequacy of price
standards; and (iii) prohibiting certain business combinations between a
corporation and a major shareholder for a period of three years, unless
such acquisition has been approved by the corporation's board of directors
prior to the time such major shareholder became a 10% beneficial owner of
shares or under certain other circumstances.
Possible Stock Price Volatility
The Company believes that factors such as regulatory changes
allowing the further commercial development of wetland acreage,
significant changes in the relative supply and demand for cranberries, the
Company's fall harvest results, the Company's limited experience in the
processed consumer cranberry products market, significant quarterly
fluctuations in the Company's financial results and sales of a significant
number of shares of Class A Common Stock into the market by existing
shareholders or the Company, together with general stock market or
economic conditions, could adversely affect or cause significant
volatility in the market price of the Class A Common Stock.
PRICE RANGE OF CLASS A COMMON STOCK AND DIVIDENDS
The Company's Class A Common Stock is traded on the Nasdaq
National Market under the symbol "CBRYA". The following table sets forth,
for the periods indicated, the high and low last sale price of the Class A
Common Stock and the cash dividends declared thereon. See the cover page
of this Prospectus for the last sale price of the Class A Common Stock on
the date prior to the date of this Prospectus. On June 26, 1996, the
Company's Board of Directors declared a two-for-one stock split to be
effected in the form of a 100% stock dividend to be distributed on
September 3, 1996 to shareholders of record at the close of business on
August 15, 1996. On the date of such distribution, the number of shares
of Class A Common Stock covered by this Prospectus will increase from
500,000 to 1,000,000.
Cash
High Low Dividends
Fiscal 1996
November 30, 1995 . . . . . . . . . . . $20 $14-1/2 $0.07
February 28, 1996 . . . . . . . . . . . $22 $17 $0.07
May 31, 1996 . . . . . . . . . . . . . $29-1/4 $19-3/4 $0.07
August 31, 1996 (through July 19, 1996) $31 $26-3/4 (1)
______________________________
(1) On June 26, 1996, the Company's Board of Directors announced an
increase in the quarterly cash dividend to $.08 per share, first
payable on August 15, 1996 to shareholders of record as of the close
of business on August 15, 1996.
The Company's Articles of Incorporation provide that the Company
must pay cash dividends on its outstanding Class A Common Stock at least
equal to 110% of any cash dividends declared on its Class B Common Stock.
See "Description of Capital Stock".
DESCRIPTION OF CAPITAL STOCK
Relative Rights and Limitations
The Company's authorized capital stock currently consists of
20,000,000 shares of Class A Common Stock, $.01 par value, 2,000,000
shares of Class B Common Stock, $.01 par value, and 5,000,000 shares of
Preferred Stock, $.01 par value. A total of 6,367,143 shares of Class A
Common Stock and 318,101 shares of Class B Common Stock were outstanding
at July 10, 1996. None of the Preferred Stock has been issued.
The outstanding shares of Class A and Class B Common Stock are,
and the shares of Class A Common Stock to be issued and sold by the
Company in this offering will be, fully paid and nonassessable, except as
provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law ("WBCL"), which in general provides for personal liability on the part
of shareholders in an amount up to the par value of shares owned for the
unpaid wages of employees, but not exceeding six months' service in any
one case. A Wisconsin trial court decision interpreted this statute to
extend liability up to the original issue price, rather than the stated
par value, of shares purchased. While this decision was affirmed by the
Wisconsin Supreme Court, the precedential value of such affirmation is
uncertain due to an equally divided court.
Harris Trust and Savings Bank, Chicago, Illinois, is the
transfer agent for the Class A Common Stock. As of July 1, 1996 there
were 688 holders of record of Class A Common Stock and approximately 3,817
beneficial owners of Class A shares, including shares held by brokers and
nominees.
The principal relative rights, privileges and limitations of the
Company's shares of Class A and Class B Common Stock and Preferred Stock
are summarized below. The following description of the Company's classes
of capital stock does not purport to be complete and is subject to, and
qualified in its entirety by, reference to the Company's Articles of
Incorporation, as amended.
Class A and Class B Common Stock
The following discussion of the characteristics of the shares of
Class A and Class B Common Stock is qualified in its entirety by reference
to the description below of the Company's authorized but unissued
Preferred Stock, which could be issued with certain preferential rights
over the shares of Class A and Class B Common Stock.
The Class A shares are entitled to one vote per share and the
Class B shares are entitled to three votes per share on all matters
presented to the Company's shareholders. The holders of the Class A and
Class B Common Stock will vote together as a single class on all such
matters presented to shareholders, except that the Class A and Class B
Common Stock will also each vote separately as a class when required by
the WBCL. See "Certain Statutory Provisions" below. A total of 161,231
of the Class B shares owned beneficially by Messrs. Swendrowski and Miles,
respectively, are subject to the terms of the Voting Trust which provides
Mr. Swendrowski with discretionary power to vote such shares.
Holders of shares of Class A Common Stock are entitled to
receive cash dividends equal to at least 110% of any cash dividends paid
on the shares of Class B Common Stock. Holders of Class B shares are
entitled to receive cash dividends when and as declared by the Board of
Directors from funds legally available therefor under the WBCL. Cash
dividends may be paid on the Class A shares without a concurrent cash
dividend being paid on the Class B shares. Pursuant to the Company's
Articles of Incorporation, the Board of Directors must pay a dividend or
distribution other than in cash on the Class A shares in the same amount
as any such noncash dividend or distribution paid on the Class B shares.
Each class of Common Stock is entitled to receive shares of the same
respective class issued pursuant to stock dividends, stock splits and
combinations in the same per share proportion as that distributed on the
other class of Common Stock.
The shares of Class A Common Stock have no conversion
privileges. The shares of Class B Common Stock are convertible at the
option of the holder thereof, at any time, into shares of Class A Common
Stock on a share-for-share basis. Additionally, the outstanding shares of
Class B Common Stock will be automatically converted into Class A shares
on a share-for-share basis if, at any time, the outstanding shares of
Class B shares fall below 2% of the outstanding Class A shares.
Upon liquidation, dissolution or winding up of the Company,
after payment of all liabilities due creditors of the Company, the holders
of the shares of Class A Common Stock are entitled to receive $1.00 per
share (subject to equitable adjustment in the event of stock splits and
other similar events) before any payment or distribution may be made to
holders of the shares of Class B Common Stock. Thereafter, holders of the
shares of Class B Common Stock are entitled to receive $1.00 per share
(subject to similar adjustment) before any further payment or distribution
is made to the holders of the Class A Common Stock. Thereafter, holders
of the Class A shares and Class B shares share on a pro rata basis in all
payments or distributions made upon liquidation, dissolution or winding up
of the Company.
There are no restrictions contained in the Articles of
Incorporation on additional issuances of shares of Class A Common Stock by
the Company. However, the Company may not issue any additional shares of
shares of Class B Common Stock (other than pursuant to stock dividends and
stock splits as described above) without the approval of a majority of the
votes represented by the outstanding shares of Class A and Class B Common
Stock voting together as a single class.
The holders of Class A and Class B Common Stock have no
redemption privileges or preemptive rights. All of the outstanding shares
of Class A and Class B Common Stock are, and the shares of Class A Common
Stock offered by the Company hereby when issued and paid for will be,
validly issued, fully paid and nonassessable, except as provided in
Section 180.0622(2)(b) of the WBCL.
Preferred Stock
There are 5,000,000 shares of Preferred Stock authorized by the
Company's Articles of Incorporation, none of which have been issued. The
Company's Board of Directors is authorized to issue from time to time,
without shareholder authorization, in one or more designated series,
Preferred Stock with such redemption, exchange, conversion, dividend,
liquidation and voting rights as may be specified in the particular
series. Dividends on any series of Preferred Stock are to be cumulative
from the date of issuance, payable at such rate and at such times as
designated by the Board of Directors for that series. No dividends or
other distributions are to be payable on the shares of Class A and Class B
Common Stock unless dividends are paid in full on the Preferred Stock and
all sinking fund obligations for the Preferred Stock, if any, are fully
funded. In the event of a liquidation or dissolution of the Company, the
issued shares of Preferred Stock would have priority over the shares of
Class A and Class B Common Stock to receive the amount specified in each
particular series out of the remaining assets of the Company.
Additionally, the Board of Directors has authority, to the maximum extent
permitted by the WBCL, to fix and determine the relative rights and
preferences of each series of Preferred Stock. The issuance of one or
more series of Preferred Stock could have an adverse effect on certain
rights, including voting rights, of the holders of shares of Class A and
Class B Common Stock. The Company has no current plans or intention to
issue shares of Preferred Stock.
Certain Statutory Provisions
Under the WBCL, a separate class vote would generally be
required to approve an amendment to the Company's Articles of
Incorporation (including an amendment made as part of a proposed merger or
other reorganization) if the amendment would change in a manner
prejudicial to the outstanding holders of a class, the designations,
preferences, limitations or other rights of the shares of the class, and
in certain other circumstances.
Section 180.1150 of the WBCL provides that, unless otherwise
provided in a corporation's articles of incorporation, the voting power of
shares of an "issuing public corporation" (which is defined as a Wisconsin
corporation having more than 500 shareholders of record, at least 100 of
whom are residents of the State of Wisconsin), which are held by any
person in excess of 20% of the voting power of the issuing public
corporation's shares, shall be limited to 10% of the full voting power of
such excess shares. This statutory voting restriction is not applicable
to shares acquired (i) directly from the Company; (ii) pursuant to an
agreement entered into prior to the time that the Company was an issuing
public corporation; (iii) in a transaction incident to which shareholders
of the Company vote to restore the full voting power of such shares; and
(iv) under certain other circumstances. The Company's Articles of
Incorporation provide that the shares of Class B Common Stock will not be
subject to the voting restrictions of Section 180.1150.
Except as may otherwise be provided by law, the requisite
affirmative vote of shareholders to approve certain significant corporate
actions, including a merger or share exchange with another corporation,
sale of all or substantially all of the corporate property and assets, or
voluntary liquidation of the Company, is a majority of all the votes
entitled to be cast on the transaction by each voting group of outstanding
shares entitled to vote thereon. Sections 180.1130 through 180.1134 of
the WBCL provide generally that, in addition to the vote otherwise
required by the WBCL or the articles of incorporation of an "issuing
public corporation," certain business combinations not meeting certain
adequacy-of-price standards specified in the statute must be approved by
(i) the holders of at least 80% of the votes entitled to be cast and (ii)
two-thirds of the votes entitled to be cast by the corporation's
outstanding voting shares owned by persons other than a "significant
shareholder" who is a party to the transaction or an affiliate or
associate thereof. Section 180.1130 defines "business combination" to
include, subject to certain exceptions, a merger or share exchange of the
issuing public corporation (or any subsidiary thereof) with, or the sale
or other disposition of substantially all assets of the issuing public
corporation to, any significant shareholder or affiliate thereof.
"Significant shareholder" is defined generally to mean a person that is
the beneficial owner of 10% or more of the voting power of the outstanding
voting shares of the issuing public corporation.
Sections 180.1140 through 180.1145 of the WBCL prohibit certain
"business combinations" between a "resident domestic corporation," such as
the Company, and a person beneficially owning 10% or more of the
outstanding voting stock of such corporation (an "interested shareholder")
within three years after the date such person became a 10% beneficial
owner, unless the business combination or the acquisition of such stock
has been approved before the stock acquisition date by the corporation's
board of directors. After such three-year period, a business combination
with the interested shareholder may be consummated only with the approval
of the holders of a majority of the voting stock not beneficially owned by
the interested shareholder, unless the combination satisfies certain
adequacy-of-price standards intended to provide a fair price for shares
held by non-interested shareholders.
The above sections of the WBCL, along with the certain
exceptions therefrom contained in the Company's Articles of Incorporation
and the ability to issue additional shares of Class A Common Stock or
Preferred Stock without further shareholder approval (subject to any
requirements necessary to maintain the quotation of the Class A shares on
NASDAQ) could have the effect, among others, of discouraging takeover
proposals for the Company or impeding a business combination between the
Company and a major shareholder of the Company.
OUTSTANDING SECURITIES COVERED BY THIS PROSPECTUS
This Prospectus, as appropriately amended or supplemented, may
be used from time to time by persons who have received shares of Class A
Common Stock covered by the Registration Statement in acquisitions of
businesses or properties by the Company, or their transferees, and who
wish to offer and sell such shares (such persons are herein referred to as
the "Selling Stockholder" or "Selling Stockholders") in transactions in
which they and any broker-dealer through whom such shares are sold may be
deemed to be underwriters within the meaning of the Act.
The Company will receive none of the proceeds from any such
sales. Any commissions paid or concessions allowed to any broker-dealer,
and, if any broker-dealer purchases such shares as principal, any profits
received on the resale of such shares, may be deemed to be underwriting
discounts and commissions under the Act. Printing, certain legal, filing
and other similar expenses of this offering will be paid by the Company.
Selling Stockholders will bear all other expenses of this offering,
including any brokerage fees, underwriting discounts or commissions.
There presently are no arrangements or understandings, formal or
informal, pertaining to the distribution of the shares as described
herein. Upon the Company's being notified by a Selling Stockholder that
any material arrangement has been entered into with a broker-dealer for
the sale of shares through a block trade, special offering, exchange
distribution or secondary distribution, a supplemental Prospectus will be
filed, pursuant to Rule 424(b) under the Act, setting forth (i) the name
of each Selling Stockholder and of the participating broker-dealer(s),
(ii) the number of shares involved, (iii) the price at which such shares
were sold, (iv) the commissions paid or discounts or concessions allowed
to such broker-dealer(s), where applicable, (v) that such broker-dealer(s)
did not conduct any investigation to verify the information set out in
this Prospectus, and (vi) other facts material to the transaction.
Selling Stockholders may sell the shares being offered hereby
from time to time in transactions (which may involve crosses and block
transactions) on NASDAQ or such other securities exchange on which the
Company's Class A Common Stock may be listed, in negotiated transactions
or otherwise, at market prices prevailing at the time of sale or at
negotiated prices. Selling Stockholders may sell some or all of the
shares in transactions involving broker-dealers, who may act solely as
agent and/or may acquire shares as principal. Broker-dealers
participating in such transactions as agent may receive commissions from
Selling Stockholders (and, if they act as agent for the purchaser of such
shares, from such purchaser). Participating broker-dealers may agree with
Selling Stockholders to sell a specified number of shares at a stipulated
price per share and, to the extent such broker-dealer is unable to do so
acting as agent for Selling Stockholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer's
commitment to Selling Stockholders.
In addition or alternatively, Shares may be sold by Selling
Stockholders and/or by or through other broker-dealers in special
offerings, exchange distributions or secondary distributions pursuant to
and in compliance with the governing rules of NASDAQ or such other
securities exchange on which the Company's Class A Common Stock may be
listed, and in connection therewith, commissions in excess of the
customary commission prescribed by the rules of such securities exchange
may be paid to participating broker-dealers, or, in the case of certain
secondary distributions, a discount or concession from the offering price
may be allowed to participating broker-dealers in excess of such customary
commission. Broker-dealers who acquire shares as principal thereafter may
resell such shares from time to time in transactions (which may involve
crosses and block transactions and which may involve sales to and through
other broker-dealers, including transactions of the nature described in
the preceding two sentences) on NASDAQ or such other securities exchange
on which the Company's Class A Common Stock may be listed, in negotiated
transactions or otherwise, at market prices prevailing at the time of sale
or at negotiated prices, and, in connection with such resales, may pay to
or receive commissions from the purchasers of such shares.
Each Selling Stockholder may indemnify any broker-dealer that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Act.
VALIDITY OF SECURITIES
The legality of the Class A Common Stock issuable hereunder will
be passed upon for the Company by Foley & Lardner, Milwaukee, Wisconsin.
Jeffrey J. Jones, a director of the Company and a partner of Foley &
Lardner, beneficially owns 9,303 shares of Class A Common Stock and
options to acquire 2,073 additional shares.
EXPERTS
The financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
March 31, 1995 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and
auditing.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 ("Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission ("Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at its Regional Offices
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661-2511; and Seven World Trade Center, Suite 1300, New York,
New York, 10048. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission, 450 Fifth
Street N.W. Plaza, Washington, D.C. 20549. Such reports and proxy
statements can also be inspected at the offices of the Nasdaq National
Market, NASDAQ Reports Section, 1735 K Street, N.W., Washington, D.C.
20006-1506.
In addition, the Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of
such Web site is http://www.sec.gov.
The Company has filed with the Commission a Registration
Statement on Form S-4 (the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the Class
A Common Stock offered hereby. This Prospectus, which constitutes a part
of the Registration Statement, does not contain all the information set
forth in the Registration Statement and reference is hereby made to the
Registration Statement and the exhibits thereto for further information
with respect to the Company and the Class A Common Stock.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended March 31,
1995.
2. Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995.
3. Transition Report on Form 10-Q for the transition period
from April 1, 1995 to August 31, 1995.
4. Quarterly Reports on Form 10-Q and 10-Q/A for the quarter
ended November 30, 1995.
5. Quarterly Reports on Form 10-Q for the quarters ended
February 29, 1996 and May 31, 1996.
6. Current Report on Form 8-K, dated June 21, 1995.
7. The description of the Company's Class A Common Stock
contained in its Registration Statement on Form S-1
(No. 33-15383), as incorporated by reference into the
Company's Registration Statement on Form 8-A (Exchange Act
File No. 0-16130), dated August 13, 1987, and any
amendments or reports filed for the purpose of updating
such description.
8. All other reports filed by the Company with the Commission
pursuant to Sections 13(a) or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the
termination of the offering of the Class A Common Stock
offered hereby shall be deemed to be incorporated herein by
reference.
Any statement contained herein or in a document all or a portion
of which is incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein or in the Prospectus Supplement modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will furnish without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
the request of such person, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless such
exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Northland Cranberries, Inc., 800 First
Avenue South, Wisconsin Rapids, Wisconsin 54494, Attention: Investor and
Public Relation Manager, telephone number (715) 424-4444.
<PAGE>
No person has been authorized to give
information or make any representation not
contained or incorporated by reference in this
Prospectus in connection with the offer made
hereby. If given or made, such information or
representation must not be relied upon as having
been authorized by the Company, any Selling 500,000 SHARES
Shareholders, or any underwriter, agent or dealer.
This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any of
the securities offered hereby in any jurisdiction
to any person to whom it is unlawful to make such
offer in such jurisdiction. Neither the delivery
of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any
implication that there has been no change in the
affairs of the Company since the date hereof. [LOGO]
TABLE OF CONTENTS
THE COMPANY . . . . . . . . . . . . . . . . . . 2
RISK FACTORS . . . . . . . . . . . . . . . . . 3
PRICE RANGE OF CLASS A COMMON
STOCK AND DIVIDENDS . . . . . . . . . . . . . . 10 CLASS A COMMON
STOCK
DESCRIPTION OF CAPITAL STOCK . . . . . . . . . 10
OUTSTANDING SECURITIES COVERED BY
THIS PROSPECTUS . . . . . . . . . . . . . . . . 14
VALIDITY OF SECURITIES . . . . . . . . . . . . 15
EXPERTS . . . . . . . . . . . . . . . . . . . . 15
AVAILABLE INFORMATION . . . . . . . . . . . . . 16 PROSPECTUS
INCORPORATION OF CERTAIN
INFORMATION BY REFERENCE . . . . . . . . . . . 17 __________, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Pursuant to Sections 180.0850 to 180.0858 of the Wisconsin
Business Corporation Law, directors and officers of the Company are
entitled to mandatory indemnification from the Company against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in defense thereof, unless (in
the latter case only) it is determined that the director or officer
breached or failed to perform his or her duties to the Company and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. Section 180.0859 of the Wisconsin Business Corporation Law
specifically states that it is the public policy of Wisconsin to require
or permit indemnification in connection with a proceeding involving
securities regulation, as described therein, to the extent required or
permitted under Sections 180.0850 to 180.0858 as described above.
Additionally, under Section 180.0828 of the Wisconsin Business Corporation
Law, directors of the Company are not subject to personal liability to the
Company, its shareholders or any person asserting rights on behalf thereof
for certain breaches or failures to perform any duty resulting solely from
their status as directors, except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above. The Company's By-laws
require indemnification of the Company's directors and officers to the
fullest extent permitted by the Wisconsin Business Corporation Law. The
indemnification rights provided as set forth above are not exclusive to
any other rights to which a director or an officer of the Company may be
entitled.
The Company also maintains an insurance policy which provides
indemnification for officers and directors against certain liabilities.
The general effect of the foregoing provisions may be to reduce
the circumstances under which an officer or director may be required to
bear the economic burden of the foregoing liabilities and expenses.
Item 21. Exhibits and Financial Statement Schedules
Exhibits. The exhibits filed herewith or incorporated by
reference are set forth in the attached Exhibit Index.
Financial Statement Schedules. None
Item 22. Undertakings.
(A) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed by
the Act and is therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(B) The undersigned registration hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
for the most recent post-effective amendment thereof) which
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(C) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(D) To respond to requests for information that is incorporated
by reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of
this form, within one business day of receipt of such request, and to send
the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent
to the effective date of the registration statement through the date of
responding to the request.
(E) To supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the
registration statement when it became effective, except where the
transaction in which the securities being offered pursuant to this
registration statement would be exempt from registration (but for the
possibility of integration) and which have an immaterial effect on the
registrant.
(F) That prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is part of this
Registration Statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes that
such reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who
may be deemed underwriters, in addition to the information called for by
the other items of the applicable form.
(G) That every prospectus (i) that is filed pursuant to
paragraph (1) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of
an amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Milwaukee, State of Wisconsin, on July 22, 1996.
NORTHLAND CRANBERRIES, INC.
By: /s/John Swendrowski
John Swendrowski
President and Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and
appoints John Swendrowski and Jeffrey J. Jones, and each of them
individually, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below as of July 22, 1996 by the
following persons in the capacities indicated.
/s/John Swendrowski /s/John A. Pazurek /s/LeRoy J. Miles
John Swendrowski John A. Pazurek LeRoy J. Miles
President, Chief Executive Vice President - Director
Officer and Director Finance and Treasurer
(Principal Executive (Principal Accounting
Officer and Principal Officer)
Financial Officer)
/s/Patrick F. Brennan /s/Robert E. Hawk /s/Jeffrey J. Jones
Patrick F. Brennan Robert E. Hawk Jeffrey J. Jones
Director Director Director
/s/Jerold D. Kaminski /s/John C. Seramur
Jerold D. Kaminski John C. Seramur
Director Director
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
3.1 Articles of Incorporation, as amended.
3.2 By-Laws of the Company, as amended and restated.
4.2 Credit Agreement, dated August 31, 1994, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.2 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.3 Security Agreement Re: Equipment, dated August 31, 1994,
between the Company and Harris Trust & Savings Bank.
[Incorporated by reference to Exhibit 4.3 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
4.4 Security Agreement Re: Crops, dated August 31, 1994,
between the Company and Harris Trust & Savings Bank.
[Incorporated by reference to Exhibit 4.4 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
4.5 Mortgage and Security Agreement with Assignment of Rents,
dated August 31, 1994, between the Company and Harris
Trust & Savings Bank. [Incorporated by reference to
Exhibit 4.5 to the Company's Form 10-K for the fiscal
year ended March 31, 1995.]
4.6 Mortgage and Security Agreement with Assignment of Rents,
dated August 31, 1994, between the Company and Harris
Trust & Savings Bank. [Incorporated by reference to
Exhibit 4.6 to the Company's Form 10-K for the fiscal
year ended March 31, 1995.]
4.7 Secured Promissory Note, dated as of June 14, 1989,
issued by the Company to The Equitable Life Assurance
Society of the United States. [Incorporated by reference
to Exhibit 10.1 to the Company's Form 8-K dated July 7,
1989.]
4.8 Mortgage and Security Agreement, dated as of June 14,
1989, from the Company to The Equitable Life Assurance
Society of the United States. [Incorporated by reference
to Exhibit 10.2 to the Company's Form 8-K dated July 7,
1989.]
4.9 Mortgage and Security Agreement dated July 9, 1993,
between the Company and The Equitable Life Assurance
Society of the United States. [Incorporated by reference
to Exhibit 4.8 to the Company's Form 10-Q dated November
12, 1993.]
4.10 Modification Agreement, dated as of July 9, 1993, between
the Company and The Equitable Life Assurance Society of
the United States. [Incorporated by reference to Exhibit
4.9 to the Company's Form 10-Q dated November 12, 1993.]
4.11 First Amendment to Credit Agreement, dated June 6, 1995,
between the Company and Harris Trust & Savings Bank.
[Incorporated by reference to Exhibit 4.11 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
4.12 Revolving Credit Note, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.12 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.13 Term Credit Note One, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.13 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.14 Term Credit Note Two, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.14 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.15 Term Credit Note Three, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.15 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.16 Acquisition Credit Note, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.16 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.17 First Supplement to Security Agreement re: Crops, dated
June 6, 1995, between the Company and Harris Trust &
Savings Bank. [Incorporated by reference to Exhibit 4.17
to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
4.18 First Supplement to Security Agreement re: Equipment,
dated June 6, 1995, between the Company and Harris Trust
& Savings Bank. [Incorporated by reference to Exhibit
4.18 to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
4.19 Mortgage and Security Agreement with Assignment of Rents,
dated June 6, 1995, between the Company and Harris Trust
& Savings Bank. [Incorporated by reference to Exhibit
4.19 to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
4.20 Mortgage and Security Agreement with Assignment of Rents,
dated June 6, 1995, between the Company and Harris Trust
& Savings Bank. [Incorporated by reference to Exhibit
4.20 to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
4.21 First Supplement to Mortgage and Security Agreement with
Assignment of Rents, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.21 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.22 First Supplement to Mortgage and Security Agreement with
Assignment of Rents, dated June 6, 1995, between the
Company and Harris Trust & Savings Bank. [Incorporated
by reference to Exhibit 4.22 to the Company's Form 10-K
for the fiscal year ended March 31, 1995.]
4.23 Secured Promissory Note dated July 9, 1993 between the
Company and The Equitable Life Assurance Society of the
United States. [Incorporated by reference to Exhibit
4.23 to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
4.24 Stock Pledge dated July 9, 1993 between the Company and
The Equitable Life Assurance Society of the United
States. [Incorporated by reference to Exhibit 4.24 to
the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
5.0 Opinion of Foley & Lardner regarding validity of shares.
9.1 Voting Trust Agreement, dated as of June 19, 1987, among
John Swendrowski, LeRoy J. Miles, Lawrence R. Kem, Susan
Swendrowski, Bette Miles, Barbara Kem, Cranberries
Limited, Inc. and Kem Cranberries, Inc. [Incorporated by
reference to Exhibit 9.1 to the Company's Form S-1
Registration Statement (Reg. No. 33-15383).]
9.2 Amendment to Voting Trust Agreement, dated October 30,
1992. [Incorporated by reference to Exhibit 9.4 to the
Company's Form 10-K for the fiscal year ended March 31,
1993.]
9.3 Swendrowski Voting Trust Termination Letter dated
January 18, 1995. [Incorporated by reference to Exhibit
9.3 to the Company's Form 10-K for the fiscal year ended
March 31, 1995.]
9.4 Lawton Voting Trust Termination Letter dated April 10,
1995. [Incorporated by reference to Exhibit 9.4 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
9.5 Hawk Voting Trust Termination Letter dated March 4, 1994.
[Incorporated by reference to Exhibit 9.5 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
10.1 1987 Stock Option Plan, dated June 2, 1987, as amended.
[Incorporated by reference to Exhibit 10.5 to the
Company's Form 10-K for the fiscal year ended December
31, 1987.]
10.2 Forms of Stock Option Agreement, as amended, under 1987
Stock Option Plan. [Incorporated by reference to Exhibit
10.6 to the Company's Form 10-K for the fiscal year ended
December 31, 1987.]
10.3 1989 Stock Option Plan, as amended. [Incorporated by
reference to Exhibit 4.4 to the Company's Form S-8
Registration Statement (Reg. No. 33-32525).]
10.4 Forms of Stock Option Agreements under the 1989 Stock
Option Plan, as amended. [Incorporated by reference to
Exhibits 4.5-4.8 to the Company's Form S-8 Registration
Statement (Reg. No. 33-32525).]
10.5 Lease Agreement dated September 5, 1991 between The
Equitable Life Assurance Society of the United States and
the Company. [Incorporated by reference to Exhibit 10.13
to the Company's Form 10-K for the fiscal year ended
March 31, 1992.]
10.6 Agreement dated September 5, 1991 between the Company and
Cranberry Hills Partnership. [Incorporated by reference
to Exhibit 10.14 to the Company's Form 10-K for the
fiscal year ended March 31, 1992.]
10.7 Lease dated March 31, 1994 between Nantucket Conservation
Foundation, Inc. and the Company. [Incorporated by
reference to Exhibit 10.11 to the Company's Form 10-K for
the fiscal year ended March 31, 1994.]
10.8 Key Executive Employment and Severance Agreement dated as
of May 8, 1992 between the Company and John Swendrowski.
[Incorporated by reference to Exhibit 10.25 to the
Company's Form 10-K for the fiscal year ended March 31,
1992.]
10.9 Northland Cranberries, Inc. 1992 Executive Incentive
Bonus Plan, as amended and restated. [Incorporated by
reference to Exhibit 10.13 to the Company's Form 10-K for
the fiscal year ended March 31, 1995.]
10.10 Agreement dated June 15, 1992 between the Company and
Board na Mona. [Incorporated by reference to Exhibit
10.27 to the Company's Form 10-K for the fiscal year
ended March 31, 1992.]
10.11 Lease dated September 13, 1993 between the Company and
United Cape Cod Cranberry Limited Partnership, including
the form of Purchase and Sale Agreement attached as
Exhibit D thereto. [Incorporated by reference to Exhibit
2.1 to the Company's Form 8-K dated September 27, 1993.]
10.12 Northland Cranberries, Inc. proposed 1995 Stock Option
Plan. [Incorporated by reference to Exhibit 10.16 to the
Company's Form 10-K for the fiscal year ended March 31,
1995.]
21 Subsidiary of the Company. [Incorporated by reference to
Exhibit 22 to the Company's Form 10-K for the fiscal year
ended March 31, 1992.]
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Foley & Lardner (contained in Exhibit 5.0).
24 Powers of Attorney (included on signature page to this
Registration Statement).
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
The undersigned, a natural person of the age of eighteen or
more, acting as sole incorporator for the purpose of forming a Wisconsin
corporation under the Wisconsin Business Corporation Law, Chapter 180 of
the Wisconsin Statutes, adopts the following Articles of Incorporation for
the corporation named herein:
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 Twelve Million
(12,000,000) shares, consisting of Ten Million (10,000,000) shares of a
class designated as "Class A Common Stock," with a par value of one cent
($.01) per share, and Two Million (2,000,000) shares of a class designated
as "Class B Common Stock," with a par value of one cent ($.01) per share.
Any and all of such shares of Class A Common Stock and Class B
Common 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 such 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 180.40(6) of the
Wisconsin Business Corporation Law or any successor provision thereto, if
any. The relative powers, preferences, limitations and rights of the
Class A Common Stock and the Class B Common Stock shall be as follows:
(1) Voting Rights and Powers.
(a) 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 shares 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 180.25(9) of the Wisconsin Business Corporation Law,
or any successor provision thereto, shall not apply to any
shares of Class B Common Stock transferred to a Permitted
Transferee (as hereinafter defined in this Article 4).
(2) Dividends and Distributions.
(a) 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).
(b) 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 of the
Corporation, including distributions pursuant to 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.
(c) 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.
(3) Restrictions on Transfer of the Class B Common Stock.
(a) No beneficial owner (as hereinafter defined) of
shares of Class B Common Stock (hereinafter referred to as a
"Class B Shareholder") may transfer, and the Corporation shall
not register the transfer of, shares of Class B Common Stock,
whether by sale, assignment, gift, bequest, appointment or
otherwise, except to a Permitted Transferee of such Class B
Shareholder. A "Permitted Transferee" shall be defined as (i)
the Class B Shareholder; (ii) the spouse of the Class B
Shareholder; (iii) any parent and any lineal descendant
(including any adopted child) of any parent of the Class B
Shareholder or of the Class B Shareholder's spouse; (iv) any
trustee, guardian or custodian for, or any executor,
administrator or other legal representative of the estate of,
any of the foregoing Permitted Transferees; (v) the trustee of a
trust (including a voting trust) principally for the benefit of
such Class B Shareholder and/or any of his or her Permitted
Transferees; and (vi) any corporation, partnership or other
entity if a majority of the beneficial ownership thereof is held
by the Class B Shareholder and/or any of his or her Permitted
Transferees. For the purpose of this Paragraph (3) the term
"beneficial owner(s)" of any shares of Class B Common Stock
shall mean a person or persons who, or entity or entities which,
have or share the power, either singly or jointly, to direct the
voting or disposition of such shares.
(b) Notwithstanding anything to the contrary set
forth herein, any Class B Shareholder may pledge his shares of
Class B Common Stock to a pledgee pursuant to a bona fide pledge
of such shares as collateral security for indebtedness due to
the pledgee, provided that such shares shall not be transferred
to or registered in the name of the pledgee and shall remain
subject to the provisions of this Paragraph (3). In the event
of foreclosure or other similar action by the pledgee, such
pledged shares of Class B Common Stock may only be transferred
to a Permitted Transferee of the pledgor or converted into
shares of Class A Common Stock, as the pledgee may elect.
(c) Any purported transfer of shares of Class B
Common Stock not permitted hereunder shall be void and of no
effect. The purported transferee shall have no rights as a
shareholder of the Corporation and no other rights against, or
with respect to, the Corporation, except the right to receive
shares of Class A Common Stock upon the conversion of his shares
of Class B Common Stock into shares of Class A Common Stock.
The Corporation may, as a condition to the transfer or the
registration of a transfer of shares of Class B Common Stock to
a purported Permitted Transferee, require the furnishing of such
affidavits or other proof as it deems necessary to establish
that such transferee is a Permitted Transferee.
(d) The Corporation shall note on the certificates
for shares of Class B Common Stock the restrictions on transfer
and registration of transfer imposed by this Paragraph (3).
(e) Shares of Class B Common Stock shall be
registered in the name(s) of the beneficial owner(s) thereof and
not in "street" or nominee name.
(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 180.40(6) 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 adjustments in respect of dividends shall be
made upon the conversion of any share 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 A 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 (1) of this Article 4.
(6) No Preemptive Rights.
No holder of any issued and outstanding shares of Class A Common
Stock or Class B Common 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 and/or Class B Common 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 dividend
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.
Executed in duplicate this 1st day of May, 1987.
/s/ Todd B. Pfister
Todd B. Pfister, Sole Incorporator
<PAGE>
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
Personally came before me this 1st day of May, 1987, the above-
named Todd B. Pfister, to me known to be the person who executed the
foregoing instrument and acknowledged the same.
[Notarial Seal] /s/ Steven R. Barth
Steven R. Barth
Notary Public, State of Wisconsin
My commission is permanent.
This Instrument was drafted by and should be returned to Todd B. Pfister,
c/o Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202. This instrument should be recorded in the office of the Register
of Deeds of Milwaukee County.
<PAGE>
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
The undersigned officers of Northland Cranberries, Inc., a
corporation organized and existing under Chapter 180 of the Wisconsin
Statutes (the "Corporation"), do hereby certify:
FIRST: That Paragraph (1)(b) of Article IV of the Articles of
Incorporation of the Corporation is amended in its entirety to read as
follows:
The voting power limitations and/or
restrictions of Section 180.25(9) 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.
SECOND: That Paragraph (3) of Article IV of the Articles of
Incorporation of the Corporation, entitled "Restrictions on Transfer of
the Class B Common Stock," is deleted in its entirety; and that Paragraphs
(4), (5) and (6) (including all references thereto) of said Article IV are
renumbered and changed to (3), (4) and (5), respectively.
THIRD: That the foregoing amendments of the Articles of
Incorporation of the Corporation were consented to in writing by the sole
shareholder of the Corporation.
FOURTH: That the effective time and date of these Articles of
Amendment shall be the date of filing of said Articles of Amendment with
the office of the Secretary of State of Wisconsin.
Executed in duplicate this 20th day of May, 1987.
NORTHLAND CRANBERRIES, INC.
By: /s/John Swendrowski
John Swendrowski, President
[NO CORPORATE SEAL] By: /s/LeRoy J. Miles
LeRoy J. Miles, Secretary
This instrument was drafted by and should be returned to Todd B. Pfister,
c/o Foley & Lardner, 777 East Wisconsin Avenue, Milwaukee, Wisconsin
53202. This instrument should be recorded in the office of the Register
of Deeds of Milwaukee County.
<PAGE>
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
The undersigned officers of Northland Cranberries, Inc., a
corporation organized and existing under Chapter 180 of the Wisconsin
Statutes, do hereby certify:
FIRST: That the name of the corporation is Northland
Cranberries, Inc.
SECOND: That ARTICLE 4 of the Articles of Incorporation of the
corporation is amended in its entirety to read as follows:
Article 4
The total number of shares of all classes of capital stock which
the Corporation shall have authority to issue is Seventeen Million
(17,000,000) shares, consisting of: (i) Ten Million (10,000,000) shares
of a class designated as "Class A Common Stock," with a par value of one
cent ($.01) per share; (ii) Two Million (2,000,000) 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 of such shares of Class A Common Stock and Class B
Common Stock (collectively, "Common Stock"), or of 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 such 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 designation 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
or 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 thereof, on
the shares of Preferred Stock then issued and 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 ratable 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 shares 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 of the Corporation,
including distributions pursuant to 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
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 adjustments in respect of dividends shall be made
upon the conversion of any share 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 A 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.
THIRD: That the foregoing amendment of the Articles of
Incorporation of the corporation was adopted in accordance with Section
180.1003 of the Wisconsin Business Corporation Law by the shareholders of
the corporation on the 19th day of August, 1991, by the following vote:
VOTE ON ADOPTION
Numbers of Shares Affirmative
Shares Entitled Votes Affirmative Negative
Class Outstanding to Vote Required Votes Cast Votes
Cast
Class A 2,507,194 2,507,194 1,253,598 1,429,578 504,242
Common
Class B 318,101 318,101 477,152 954,303 0
Common*
Class A&B 2,825,295 2,825,295 1,730,750 2,383,881 504,242
Combined*
* The Class B Shares have three (3) votes per share.
<PAGE>
Executed in duplicate and seal affixed this 19th day of August, 1991.
/s/ John Swendrowski
John Swendrowski
President, Chief Executive Officer and
Treasurer
[NO CORPORATE SEAL]
/s/ LeRoy J. Miles
LeRoy J. Miles
Executive Vice President and Secretary
This instrument was drafted by and should be returned to Anthony M.
Marick of the firm of Foley & Lardner, 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202.
<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
NORTHLAND CRANBERRIES, INC.
1. The name of the corporation is Northland Cranberries, Inc.
2. The first sentence of Article 4 of the Articles of
Incorporation of the Corporation is amended in its entirety to read as
follows:
Article 4
The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is
Twenty-Seven Million (27,000,000) shares, consisting of: (i)
Twenty Million (20,000,000) shares of a class designated as
"Class A Common Stock," with a par value of one cent ($.01) per
share; (ii) Two Million (2,000,000) 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.
3. The foregoing amendment to the corporation's Articles of
Incorporation was submitted to the corporation's shareholders by the Board
of Directors of the corporation and was adopted by such shareholders on
August 18, 1995 in accordance with Section 180.1003 of the Wisconsin
Business Corporation Law.
Executed on behalf of the corporation this 18th day of August,
1995.
___________________________
John A. Pazurek
Vice President - Finance and Treasurer
This instrument was drafted by and should be returned to Thomas L.
Stricker, Jr. of the firm of Foley & Lardner, 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202.
EXHIBIT 3.2
Amended Effective January 15, 1996
BYLAWS
OF
NORTHLAND CRANBERRIES, INC.
(a Wisconsin corporation)
<PAGE>
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may
have such principal and other business offices, either within or without
the State of Wisconsin, as the Board of Directors may designate or as the
business of the corporation may require from time to time.
1.02. Registered Office. The registered office of the
corporation required by the Wisconsin Business Corporation Law to be
maintained in the State of Wisconsin may be, but need not be, identical
with the principal office in the State of Wisconsin, and the address of
the registered office may be changed from time to time by the Board of
Directors or by the registered agent. The business office of the
registered agent of the corporation shall be identical to such registered
office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the
shareholders shall be held on the first Wednesday in January of each year
(beginning in 1997), or on such other date within thirty days before or
after such date as may be fixed by or under the authority of the Board of
Directors, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting. If the day fixed
for the annual meeting shall be a legal holiday in the State of Wisconsin,
such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein, or
fixed as herein provided, for any annual meeting of the shareholders, or
at any adjournment thereof, the Board of Directors shall cause the
election to be held at a special meeting of the shareholders as soon
thereafter as is practicable.
2.02. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
the Wisconsin Business Corporation Law, may be called by the Board of
Directors or the President. The corporation shall call a special meeting
of shareholders in the event that the holders of at least 10% of all of
the votes entitled to be cast on any issue proposed to be considered at
the proposed special meeting sign, date and deliver to the corporation one
or more written demands for a special meeting describing one or more
purposes for which it is to be held. The corporation shall give notice of
such a special meeting within thirty days after the date that the demand
is delivered to the corporation.
2.03. Place of Meeting. The Board of Directors may
designate any place, either within or without the State of Wisconsin, as
the place of meeting for any annual or special meeting of shareholders.
If no designation is made, the place of meeting shall be the principal
office of the corporation. Any meeting may be adjourned to reconvene at
any place designated by vote of a majority of the votes represented
thereat.
2.04. Notice of Meeting. Written notice stating the date,
time and place of any meeting of shareholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days nor more than sixty days before the date
of the meeting (unless a different time is provided by the Wisconsin
Business Corporation Law or the articles of incorporation), either
personally or by mail, by or at the direction of the President or the
Secretary, to each shareholder of record entitled to vote at such meeting
and to such other persons as required by the Wisconsin Business
Corporation Law. If mailed, such notice shall be deemed to be effective
when deposited in the United States mail, addressed to the shareholder at
his or her address as it appears on the stock record books of the
corporation, with postage thereon prepaid. If an annual or special meeting
of shareholders is adjourned to a different date, time or place, the
corporation shall not be required to give notice of the new date, time or
place if the new date, time or place is announced at the meeting before
adjournment; provided, however, that if a new record date for an adjourned
meeting is or must be fixed, the corporation shall give notice of the
adjourned meeting to persons who are shareholders as of the new record
date.
2.045. Proper Business or Purposes of Shareholder Meetings.
To be properly brought before a meeting of shareholders, business must be
(a) specified in the notice of the meeting (or any supplement thereto)
given by or at the discretion of the Board of Directors or otherwise as
provided in Section 2.04 hereof; (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors; or (c) otherwise
properly brought before the meeting by a shareholder. For business to be
properly brought before a meeting by a shareholder, the shareholder must
have given written notification thereof, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the corporation,
and, in the case of an annual meeting, such notification must be given not
later than thirty (30) days in advance of the Originally Scheduled Date of
such meeting; provided, however, that if the Originally Scheduled Date of
such annual meeting is earlier than the date specified in these bylaws as
the date of the annual meeting and if the Board of Directors does not
determine otherwise, or in the case of a special meeting of shareholders,
such written notice may be so given and received not later than the close
of business on the 15th day following the date of the first public
disclosure, which may include any public filing with the Securities and
Exchange Commission, of the Originally Scheduled Date of such meeting.
Any such notification shall set forth as to each matter the shareholder
proposes to bring before the meeting (i) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting and, in the event that such
business includes a proposal to amend either the articles of incorporation
or bylaws of the corporation, the exact language of the proposed
amendment; (ii) the name and address of the shareholder proposing such
business; (iii) a representation that the shareholder is a holder of
record of stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose such
business; and (iv) any material interest of the shareholder in such
business. No business shall be conducted at a meeting of shareholders
except in accordance with this Section 2.045, and the chairman of any
meeting of shareholders may refuse to permit any business to be brought
before such meeting without compliance with the foregoing procedures. For
purposes of these bylaws, the "Originally Scheduled Date" of any meeting
of shareholders shall be the date such meeting is scheduled to occur as
specified in the notice of such meeting first generally given to
shareholders regardless of whether any subsequent notice is given for such
meeting or the record date of such meeting is changed. Nothing contained
in this Section 2.045 shall be construed to limit the rights of a
shareholder to submit proposals to the corporation which comply with the
proxy rules of the Securities and Exchange Commission for inclusion in the
corporation's proxy statement for consideration at shareholder meetings.
2.05. Waiver of Notice. A shareholder may waive any notice
required by the Wisconsin Business Corporation Law, the articles of
incorporation or these bylaws before or after the date and time stated in
the notice. The waiver shall be in writing and signed by the shareholder
entitled to the notice, contain the same information that would have been
required in the notice under applicable provisions of the Wisconsin
Business Corporation Law (except that the time and place of meeting need
not be stated) and be delivered to the corporation for inclusion in the
corporate records. A shareholder's attendance at a meeting, in person or
by proxy, waives objection to all of the following: (a) lack of notice or
defective notice of the meeting, unless the shareholder at the beginning
of the meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (b) consideration of a particular
matter at the meeting that is not within the purpose described in the
meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.06. Fixing of Record Date. The Board of Directors may fix
in advance a date as the record date for the purpose of determining
shareholders entitled to notice of and to vote at any meeting of
shareholders, shareholders entitled to demand a special meeting as
contemplated by Section 2.02 hereof, shareholders entitled to take any
other action, or shareholders for any other purpose. Such record date
shall not be more than seventy days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. If no record date is fixed by the Board of Directors or by the
Wisconsin Business Corporation Law for the determination of shareholders
entitled to notice of and to vote at a meeting of shareholders, the record
date shall be the close of business on the day before the first notice is
given to shareholders. If no record date is fixed by the Board of
Directors or by the Wisconsin Business Corporation Law for the
determination of shareholders entitled to demand a special meeting as
contemplated in Section 2.02 hereof, the record date shall be the date
that the first shareholder signs the demand. Except as provided by the
Wisconsin Business Corporation Law for a court-ordered adjournment, a
determination of shareholders entitled to notice of and to vote at a
meeting of shareholders is effective for any adjournment of such meeting
unless the Board of Directors fixes a new record date, which it shall do
if the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting. The record date for determining
shareholders entitled to a distribution (other than a distribution
involving a purchase, redemption or other acquisition of the corporation's
shares) or a share dividend is the date on which the Board of Directors
authorized the distribution or share dividend, as the case may be, unless
the Board of Directors fixes a different record date.
2.07. Shareholders' List for Meetings. After a record date
for a special or annual meeting of shareholders has been fixed, the
corporation shall prepare a list of the names of all of the shareholders
entitled to notice of the meeting. The list shall be arranged by class or
series of shares, if any, and show the address of and number of shares
held by each shareholder. Such list shall be available for inspection by
any shareholder, beginning two business days after notice of the meeting
is given for which the list was prepared and continuing to the date of the
meeting, at the corporation's principal office or at a place identified in
the meeting notice in the city where the meeting will be held. A
shareholder or his or her agent may, on written demand, inspect and,
subject to the limitations imposed by the Wisconsin Business Corporation
Law, copy the list, during regular business hours and at his or her
expense, during the period that it is available for inspection pursuant to
this Section 2.07. The corporation shall make the shareholders' list
available at the meeting and any shareholder or his or her agent or
attorney may inspect the list at any time during the meeting or any
adjournment thereof. Refusal or failure to prepare or make available the
shareholders' list shall not affect the validity of any action taken at a
meeting of shareholders.
2.08. Quorum and Voting Requirements. Shares entitled to
vote as a separate voting group may take action on a matter at a meeting
only if a quorum of those shares exists with respect to that matter.
Except as otherwise provided in the articles of incorporation or the
Wisconsin Business Corporation Law, a majority of the votes entitled to be
cast on the matter shall constitute a quorum of the voting group for
action on that matter. Once a share is represented for any purpose at a
meeting, other than for the purpose of objecting to holding the meeting or
transacting business at the meeting, it is considered present for purposes
of determining whether a quorum exists for the remainder of the meeting
and for any adjournment of that meeting unless a new record date is or
must be set for the adjourned meeting. If a quorum exists, except in the
case of the election of directors, action on a matter shall be approved if
the votes cast within the voting group favoring the action exceed the
votes cast opposing the action, unless the articles of incorporation or
the Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the articles of
incorporation, each director shall be elected by a plurality of the votes
cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present. Though less than a quorum of the
outstanding votes of a voting group are represented at a meeting, a
majority of the votes so represented may adjourn the meeting from time to
time without further notice. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
2.09. Conduct of Meeting. The President, and in his absence
or discretion, a Vice President in the order provided under Section 4.07
hereof or as chosen by the President, and in their absence, any person
chosen by the shareholders present shall call the meeting of the
shareholders to order and shall act as chairman of the meeting, and the
Secretary of the corporation shall act as secretary of all meetings of the
shareholders, but, in the absence or upon the request of the Secretary,
the presiding officer may appoint any other person to act as secretary of
the meeting.
2.10. Proxies. At all meetings of shareholders, a
shareholder may vote his or her shares in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by his or
her attorney-in-fact. An appointment of a proxy is effective when
received by the Secretary or other officer or agent of the corporation
authorized to tabulate votes. An appointment is valid for eleven months
from the date of its signing unless a different period is expressly
provided in the appointment form.
2.11. Voting of Shares. Except as provided in the articles
of incorporation or in the Wisconsin Business Corporation Law, each
outstanding share of Class A Common Stock, is entitled to one vote on each
matter voted on at a meeting of shareholders and each outstanding share of
Class B Common Stock is entitled to three votes on each matter voted on at
a meeting of shareholders.
2.12. Action without Meeting. Any action required or
permitted by the articles of incorporation or these bylaws or any
provision of the Wisconsin Business Corporation Law to be taken at a
meeting of the shareholders may be taken without a meeting and without
action by the Board of Directors if a written consent or consents,
describing the action so taken, is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof and delivered
to the corporation for inclusion in the corporate records.
2.13. Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation, if acting in good faith, may accept the
vote, consent, waiver or proxy appointment and give it effect as the act
of the shareholder if any of the following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy appointment if
the Secretary or other officer or agent of the corporation who is
authorized to tabulate votes, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers and Number. All corporate powers shall
be exercised by or under the authority of, and the business and affairs of
the corporation managed under the direction of, the Board of Directors.
The number of directors of the corporation shall be seven.
3.02. Tenor and Qualifications. Each director shall hold
office until the next annual meeting of shareholders and until his or her
successor shall have been elected and, if necessary, qualified, or until
there is a decrease in the number of directors which takes effect after
the expiration of his or her term, or until his or her prior death,
resignation or removal. A director may be removed by the shareholders
only at a meeting called for the purpose of removing the director, and the
meeting notice shall state that the purpose, or one of the purposes, of
the meeting is removal of the director. A director may be removed from
office with or without cause if the votes cast to remove the director
exceeds the number of votes cast not to remove such director. A director
may resign at any time by delivering written notice which complies with
the Wisconsin Business Corporation Law to the Board of Directors, to the
President (in his capacity as chairman of the Board of Directors) or to
the corporation. A director's resignation is effective when the notice is
delivered unless the notice specifies a later effective date. Directors
need not be residents of the State of Wisconsin or shareholders of the
corporation.
3.025. Shareholder Nomination Procedure. Nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any shareholder entitled to vote
for the election of directors who complies fully with the requirements of
this Section 3.025. Any shareholder entitled to vote for the election of
directors at a meeting may nominate a person or persons for election as a
director or directors only if written notice of such shareholder's intent
to make any such nomination is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the corporation
not later than: (i) with respect to an election to be held at any annual
meeting of shareholders, 30 days in advance of the Originally Scheduled
Date of such meeting (provided, however, that if the Originally Scheduled
Date of such meeting is earlier than the date specified in these bylaws as
the date of the annual meeting and if the Board of Directors does not
determine otherwise, such written notice may be so given and received not
later than the close of business on the 15th day following the date of the
first public disclosure, which may include any public filing with the
Securities and Exchange Commission, of the Originally Scheduled Date of
such meeting); and (ii) with respect to an election to be held at a
special meeting of shareholders, the close of business on the 15th day
following the date of first public disclosure, which may include any
public filing with the Securities and Exchange Commission, of the
Originally Scheduled Date of such meeting. Each such notice shall set
forth: (a) the name and address of the shareholder who intends to make the
nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of shares of the
corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the shareholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; (d) such
other information regarding each nominee proposed by such shareholder as
would have been required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated, by the Board of
Directors; and (e) the consent of each nominee to serve as a director of
the corporation if so elected. The chairman of any meeting of shareholders
to elect directors and the Board of Directors may refuse to acknowledge
the nomination by a shareholder of any person not made in compliance with
the foregoing procedure.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately
after the annual meeting of shareholders and each adjourned session
thereof. The place of such regular meeting shall be the same as the place
of the meeting of shareholders which precedes it, or such other suitable
place as may be communicated to the directors at or prior to such meeting
of shareholders. To the extent practicable, the date, time and place,
either within or without the State of Wisconsin, for the holding of
additional regular meetings of the Board of Directors shall be
communicated amongst and generally agreed upon at any meeting of the Board
of Directors.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President, Secretary
or any two directors. The President or Secretary may fix any place,
either within or without the State of Wisconsin, as the place for holding
any special meeting of the Board of Directors, and if no other place is
fixed the place of the meeting shall be the principal business office of
the corporation in the State of Wisconsin.
3.05. Notice; Waiver. Notice of each special meeting of the
Board of Directors shall be given by written notice delivered or
communicated in person, by telegraph, teletype, facsimile or other form of
wire or wireless communication, or by mail or private carrier, to each
director at his business address or at such other address as such director
shall have designated in writing filed with the Secretary, in each case
not less than forty-eight hours prior to the meeting. The notice need not
prescribe the purpose of the special meeting of the Board of Directors or
the business to be transacted at such meeting. If mailed, such notice
shall be deemed to be effective when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice is given by
telegram, such notice shall be deemed to be effective when the telegram is
delivered to the telegraph company. If notice is given by private
carrier, such notice shall be deemed to be effective when delivered to the
private carrier. Whenever any notice whatever is required to be given to
any director of the corporation under the articles of incorporation or
these bylaws or any provision of the Wisconsin Business Corporation Law, a
waiver thereof in writing, signed at any time, whether before or after the
date and time of meeting, by the director entitled to such notice shall be
deemed equivalent to the giving of such notice. The corporation shall
retain any such waiver as part of the permanent corporate records. A
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless the director at the beginning
of the meeting or promptly upon his or her arrival objects to holding the
meeting or transacting business at the meeting and does not thereafter
vote for or assent to action taken at the meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the articles of incorporation or these
bylaws, a majority of the number of directors specified in Section 3.01 of
these bylaws shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors. Except as otherwise provided by
the Wisconsin Business Corporation Law or by the articles of incorporation
or by these bylaws, a quorum of any committee of the Board of Directors
created pursuant to Section 3.12 hereof shall consist of a majority of the
number of directors appointed to serve on the committee. A majority of
the directors present (though less than such quorum) may adjourn any
meeting of the Board of Directors or any committee thereof, as the case
may be, from time to time without further notice.
3.07. Manner of Acting. The affirmative vote of a majority
of the directors present at a meeting of the Board of Directors or a
committee thereof at which a quorum is present shall be the act of the
Board of Directors or such committee, as the case may be, unless the
Wisconsin Business Corporation Law, the articles of incorporation or these
bylaws require the vote of a greater number of directors.
3.08. Conduct of Meetings. The President, and in his
absence, a Vice President in the order provided under Section 4.07, and in
their absence, any director chosen by the directors present, shall call
meetings of the Board of Directors to order and shall act as chairman of
the meeting. The Secretary of the corporation shall act as secretary of
all meetings of the Board of Directors but in the absence of the
Secretary, the presiding officer may appoint any other person present to
act as secretary of the meeting. Minutes of any regular or special
meeting of the Board of Directors shall be prepared and distributed to
each director.
3.09. Vacancies. Except as provided below, any vacancy
occurring in the Board of Directors, including a vacancy resulting from an
increase in the number of directors, may be filled by any of the
following: (a) the shareholders; (b) the Board of Directors; or (c) if the
directors remaining in office constitute fewer than a quorum of the Board
of Directors, the directors, by the affirmative vote of a majority of all
directors remaining in office. If the vacant office was held by a
director elected by a voting group of shareholders, only the holders of
shares of that voting group may vote to fill the vacancy if it is filled
by the shareholders, and only the remaining directors elected by that
voting group may vote to fill the vacancy if it is filled by the
directors. A vacancy that will occur at a specific later date, because of
a resignation effective at a later date or otherwise, may be filled before
the vacancy occurs, but the new director may not take office until the
vacancy occurs.
3.10. Compensation. The Board of Directors, irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the corporation as
directors, officers or otherwise, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority
to provide for or delegate authority to an appropriate committee to
provide for reasonable pensions, disability or death benefits, and other
benefits or payments, to directors, officers and employees and to their
estates, families, dependents or beneficiaries on account of prior
services rendered by such directors, officers and employees to the
corporation.
3.11. Presumption of Assent. A director who is present and
is announced as present at a meeting of the Board of Directors or any
committee thereof created in accordance with Section 3.12 hereof, when
corporate action is taken, assents to the action taken unless any of the
following occurs: (a) the director objects at the beginning of the meeting
or promptly upon his or her arrival to holding the meeting or transacting
business at the meeting; (b) the director's dissent or abstention from the
action taken is entered in the minutes of the meeting; or (c) the director
delivers written notice that complies with the Wisconsin Business
Corporation Law of his or her dissent or abstention to the presiding
officer of the meeting before its adjournment or to the corporation
immediately after adjournment of the meeting. Such right of dissent or
abstention shall not apply to a director who votes in favor of the action
taken.
3.12. Committees. The Board of Directors by resolution
adopted by the affirmative vote of a majority of all of the directors then
in office may create one or more committees, appoint members of the Board
of Directors to serve on the committees and designate other members of the
Board of Directors to serve as alternates. Each committee shall have two
or more members who shall, unless otherwise provided by the Board of
Directors, serve at the discretion of the Board of Directors. A committee
may be authorized to exercise the authority of the Board of Directors,
except that a committee may not do any of the following: (a) authorize
distributions; (b) approve or propose to shareholders action that the
Wisconsin Business Corporation Law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or, unless the
Board of Directors provides by resolution that vacancies on a committee
shall be filled by the affirmative vote of the remaining committee
members, on any Board committee; (d) amend the corporation's articles of
incorporation; (e) adopt, amend or repeal bylaws; (f) approve a plan of
merger not requiring shareholder approval; (g) authorize or approve
reacquisition of shares, except according to a formula or method
prescribed by the Board of Directors; and (h) authorize or approve the
issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except that the Board of Directors may authorize a
committee to do so within limits prescribed by the Board of Directors.
Unless otherwise provided by the Board of Directors in creating the
committee, a committee may employ counsel, accountants and other
consultants to assist it in the exercise of its authority.
3.13. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
bylaws, members of the Board of Directors (and any committees thereof
created pursuant to Section 3.12 hereof) may participate in regular or
special meetings by, or through the use of, any means of communication by
which all participants may simultaneously hear each other, such as by
conference telephone. If a meeting is conducted by such means, then at the
commencement of such meeting the presiding officer shall inform the
participating directors that a meeting is taking place at which official
business may be transacted. Any participant in a meeting by such means
shall be deemed present in person at such meeting. If action is to be
taken at any meeting held by such means on any of the following: (a) a
plan of merger or share exchange; (b) a sale, lease, exchange or other
disposition of substantial property or assets of the corporation; (c) a
voluntary dissolution or the revocation of voluntary dissolution
proceedings; or (d) a filing for bankruptcy, then the identity of each
director participating in such meeting must be verified by the disclosure
at such meeting by each such director of each such director's social
security number to the secretary of the meeting before a vote may be taken
on any of the foregoing matters. For purposes of the preceding clause
(b), the phrase "sale, lease, exchange or other disposition of substantial
property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the corporation having a net book
value equal to 10% or more of the net book value of the total assets of
the corporation on and as of the close of the fiscal year last ended prior
to the date of such meeting and as to which financial statements of the
corporation have been prepared. Notwithstanding the foregoing, no action
may be taken at any meeting held by such means on any particular matter
which the presiding officer determines, in his or her sole discretion, to
be inappropriate under the circumstances for action at a meeting held by
such means. Such determination shall be made and announced in advance of
such meeting.
3.14. Action without Meeting. Any action required or
permitted by the Wisconsin Business Corporation Law to be taken at a
meeting of the Board of Directors or a committee thereof created pursuant
to Section 3.12 hereof may be taken without a meeting if the action is
taken by all members of the Board or of the committee. The action shall
be evidenced by one or more written consents describing the action taken,
signed by each director or committee member and retained by the
corporation. Such action shall be effective when the last director or
committee member signs the consent, unless the consent specifies a
different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation
shall be a President, the number of Vice Presidents as authorized from
time to time by the Board of Directors, a Secretary, and a Treasurer, each
of whom shall be elected by the Board of Directors. Such other officers
and assistant officers as may be deemed necessary may be elected or
appointed by the Board of Directors or the President. The Board of
Directors may also authorize any duly authorized officer to appoint one or
more officers or assistant officers. Any two or more offices may be held
by the same person.
4.02. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of the shareholders. If the
election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as is practicable. Each officer shall
hold office until his or her successor shall have been duly elected or
until his or her prior death, resignation or removal.
4.03. Removal. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these bylaws,
an officer may remove any officer or assistant officer appointed by that
officer, at any time, with or without cause and notwithstanding the
contract rights, if any, of the officer removed. The appointment of an
officer does not of itself create contract rights.
4.04. Resignation. An officer may resign at any time by
delivering notice to the corporation that complies with the Wisconsin
Business Corporation Law. The resignation shall be effective when the
notice is delivered, unless the notice specifies a later effective date
and the corporation accepts the later effective date.
4.05. Vacancies. A vacancy in any principal office because
of death, resignation, removal, disqualification or otherwise, shall be
filled by the Board of Directors for the unexpired portion of the term.
If a resignation of an officer is effective at a later date as
contemplated by Section 4.04 hereof, the Board of Directors may fill the
pending vacancy before the effective date if the Board provides that the
successor may not take office until the effective date.
4.06. President. The President shall be the Chief Executive
Officer of the corporation and, subject to the direction of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. The President shall, when present, preside at
all meetings of the shareholders and of the Board of Directors. He shall
have authority, subject to such rules as may be prescribed by the Board of
Directors, to appoint such agents and employees of the corporation as he
shall deem necessary, to prescribe their powers, duties and compensation,
and to delegate authority to them. Such agents and employees shall hold
office at the discretion of the President. He shall have authority to
sign, execute and acknowledge, on behalf of the corporation, all deeds,
mortgages, bonds, stock certificates, contracts, leases, reports and all
other documents or instruments necessary or proper to be executed in the
course of the corporation's regular business, or which shall be authorized
by resolution of the Board of Directors; and, except as otherwise provided
by law or the Board of Directors, he may authorize any Vice President or
other officer or agent of the corporation to sign, execute and acknowledge
such documents or instruments in his place and stead. In general he shall
perform all duties incident to the office of President and such other
duties as may be prescribed by the Board of Directors from time to time.
4.07. The Vice Presidents. In the absence of the president
or in the event of the President's death, inability or refusal to act, or
in the event for any reason it shall be impracticable for the President to
act personally, the Executive Vice President (or in the event of his
absence or inability to act, any Vice President in the order designated by
the Board of Directors or President, or in the absence of any designation,
then in the order of their election) shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Any Vice President may sign,
with the Secretary or Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties and have such authority
as from time to time may be delegated or assigned to him or her by the
President or by the Board of Directors. The execution of any instrument
of the corporation by any Vice President shall be conclusive evidence, as
to third parties, of his or her authority to act in the stead of the
President.
4.08. The Secretary. The Secretary shall: (a) keep minutes
of the meetings of the shareholders and of the Board of Directors (and of
committees thereof) in one or more books provided for that purpose
(including records of actions taken by the shareholders or the Board of
Directors (or committees thereof) without a meeting); (b) see that all
notices are duly given in accordance with the provisions of these bylaws
or as required by the Wisconsin Business Corporation Law; (c) be custodian
of the corporate records and of the seal of the corporation, if any, and
see that the seal of the corporation, if any, is affixed to all documents
the execution of which on behalf of the corporation under its seal is
required and duly authorized; (d) maintain a record of the shareholders of
the corporation, in a form that permits preparation of a list of the names
and addresses of all shareholders, by class or series of shares and
showing the number and class or series of shares held by each shareholder;
(e) sign with the President, or a Vice President, certificates for shares
of the corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general perform all duties
incident to the office of Secretary and have such other duties and
exercise such authority as from time to time may be delegated or assigned
by the President or by the Board of Directors.
4.09. The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; (b) maintain appropriate accounting records; (c) receive and
give receipts for moneys due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Section 5.04; and (d) in
general perform all of the duties incident to the office of Treasurer and
have such other duties and exercise such other authority as from time to
time may be delegated or assigned by the President or by the Board of
Directors. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board of Directors shall
determine.
4.10. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors or President may from time to time authorize. The
Assistant Secretaries may sign with the President or a Vice President
certificates for shares of the corporation the issuance of which shall
have been authorized by a resolution of the Board of Directors. The
Assistant Treasurers shall respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such
sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall
perform such duties and have such authority as shall from time to time be
delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
4.11. Other Assistants and Acting Officers. The Board of
Directors and President shall have the power to appoint, or to authorize
any duly appointed officer of the corporation to appoint, any person to
act as assistant to any officer, or as agent for the corporation in his or
her stead, or to perform the duties of such officer whenever for any
reason it is impracticable for such officer to act personally, and such
assistant or acting officer or other agent so appointed by the Board of
Directors or an authorized officer shall have the power to perform all the
duties of the office to which he or she is so appointed to be an
assistant, or as to which he or she is so appointed to act, except as such
power may be otherwise defined or restricted by the Board of Directors,
the President or the appointing officer.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances. In the absence of other designation, all deeds, mortgages and
instruments of assignment or pledge made by the corporation shall be
executed in the name of the corporation by the President or one of the
Vice Presidents and by the Secretary, an Assistant Secretary, the
Treasurer or an Assistant Treasurer; the Secretary or an Assistant
Secretary, when necessary or required, shall affix the corporate seal, if
any, thereto; and when so executed no other party to such instrument or
any third party shall be required to make any inquiry into the authority
of the signing officer or officers.
5.02. Loans. The President, or any officer designated by
the President, shall have the power to contract on behalf of the
corporation, and issue evidences of indebtedness, for indebtedness for
borrowed money not exceeding Five Hundred Thousand Dollars ($500,000)
without further authorization or approval of the Board of Directors. No
indebtedness for borrowed money over such amount shall be contracted on
behalf of the corporation and no evidences of such indebtedness shall be
issued in its name unless authorized by or under the authority of a
resolution of the Board of Directors. Such authorization may be general
or confined to specific instances.
5.03. Checks, Drafts. etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation and in such manner as shall
from time to time be determined by or under the authority of a resolution
of the Board of Directors.
5.04. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositaries as may be
selected by or under the authority of a resolution of the Board of
Directors.
5.05. Voting of Securities Owned by this Corporation.
Subject to the specific directions of the Board of Directors, (a) any
shares or other securities issued by any other corporation and owned or
controlled by this corporation may be voted at any meeting of security
holders of such other corporation by the President of this corporation if
he be present, or in his absence by any Vice President of this corporation
who may be present, and (b) whenever, in the judgment of the President, or
in his absence, of any Vice President, it is desirable for this
corporation to execute a proxy or written consent in respect to any shares
or other securities issued by any other corporation and owned by this
corporation, such proxy or consent shall be executed in the name of this
corporation by the President or one of the Vice Presidents of this
corporation, without necessity of any authorization by the Board of
Directors, affixation of corporate seal, if any, or countersignature or
attestation by another officer. Any person or persons designated in the
manner above stated as the proxy or proxies of this corporation shall have
full right, power and authority to vote the shares or other securities
issued by such other corporation and owned by this corporation the same as
such shares or other securities might be voted by this corporation.
ARTICLE VI. CERTIFICATES FOR SHARES; TRANSFER OF SHARES
6.01. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form, consistent with the
Wisconsin Business Corporation Law, as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the corporation.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
canceled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation, if any, on any certificates for shares may be a facsimile.
The signature of the President or Vice President and the Secretary or
Assistant Secretary upon a certificate may be facsimiles if the
certificate is manually signed on behalf of a transfer agent, or a
registrar, other than the corporation itself or an employee of the
corporation.
6.03. Signature by Former Officers. The validity of a share
certificate is not affected if a person who signed the certificate (either
manually or in facsimile) no longer holds office when the certificate is
issued.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may
treat the registered owner of such shares as the person exclusively
entitled to vote, to receive notifications and otherwise to have and
exercise all the rights and power of an owner. Where a certificate for
shares is presented to the corporation with a request to register for
transfer, the corporation shall not be liable to the owner or any other
person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements and (b)
the corporation had no duty to inquire into adverse claims or has
discharged any such duty. The corporation may require reasonable
assurance that such endorsements are genuine and effective and compliance
with such other regulations as may be prescribed by or under the authority
of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of
any restriction imposed by the corporation upon the transfer of such
shares.
6.06. Lost, Destroyed or Stolen Certificates. Where the
owner claims that certificates for shares have been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if
the owner (a) so requests before the corporation has notice that such
shares have been acquired by a bona fide purchaser; (b) files with the
corporation a sufficient indemnity bond if required by the Board of
Directors or any principal officer; and (c) satisfies such other
reasonable requirements as may be prescribed by or under the authority of
the Board of Directors.
6.07. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible
or intangible property or benefit to the corporation, including cash,
promissory notes, services performed, contracts for services to be
performed or other securities of the corporation. Before the corporation
issues shares, the Board of Directors shall determine that the
consideration received or to be received for the shares to be issued is
adequate. The determination of the Board of Directors is conclusive
insofar as the adequacy of consideration for the issuance of shares
relates to whether the shares are validly issued, fully paid and
nonassessable. The corporation may place in escrow shares issued in whole
or in part for a contract for future services or benefits, a promissory
note, or otherwise for property to be issued in the future, or make other
arrangements to restrict the transfer of the shares, and may credit
distributions in respect of the shares against their purchase price, until
the services are performed, the benefits or property are received or the
promissory note is paid. If the services are not performed, the benefits
or property are not received or the promissory note is not paid, the
corporation may cancel, in whole or in part, the shares escrowed or
restricted and the distributions credited.
6.08. Stock Regulations. The Board of Directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with law as it may deem expedient concerning the issue,
transfer and registration of shares of the corporation.
ARTICLE VII. SEAL
7.01. The corporation shall have no corporate seal unless
otherwise determined by the Board of Directors.
ARTICLE VIII. INDEMNIFICATION
8.01. Certain Definitions. All capitalized terms used in
this Article VIII and not otherwise hereinafter defined in this Section
8.01 shall have the meaning set forth in Section 180.0850 of the Statute.
The following capitalized terms (including any plural forms thereof) used
in this Article VIII shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control
with, the Corporation.
(b) "Authority" shall mean the entity selected by the Director
or Officer to determine his or her right to indemnification pursuant to
Section 8.04.
(c) "Board" shall mean the entire then elected and serving
Board of Directors of the Corporation, including all members thereof who
are Parties to the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer
breached or failed to perform his or her duties to the Corporation and his
or her breach of or failure to perform those duties is determined, in
accordance with Section 8.04, to constitute misconduct under Section
180.0851(2) (a) l, 2, 3 or 4 of the Statute.
(e) "Corporation," as used herein and as defined in the Statute
and incorporated by reference into the definitions of certain other
capitalized terms used herein, shall mean this Corporation, including,
without limitation, any successor corporation or entity to this
Corporation by way of merger, consolidation or acquisition of all or
substantially all of the capital stock or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in
the Statute; provided, that, for purposes of this Article VIII, it shall
be conclusively presumed that any Director or Officer serving as a
director, officer, partner, trustee, member of any governing or decision-
making committee, employee or agent of an Affiliate shall be so serving at
the request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who
are not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article VIII, the term "Party" shall
also include any Director or Officer or employee of the Corporation who is
or was a witness in a Proceeding at a time when he or she has not
otherwise been formally named a Party thereto.
(i) "Proceeding" shall have the meaning set forth in the
Statute; provided, that, in accordance with Section 180.0859 of the
Statute and for purposes of this Article VIII, the term "Proceeding" shall
also include all Proceedings (i) brought under (in whole or in part) the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934,
as amended, their respective state counterparts, and/or any rule or
regulation promulgated under any of the foregoing; (ii) brought before an
Authority or otherwise to enforce rights hereunder; (iii) any appeal from
a Proceeding; and (iv) any Proceeding in which the Director or Officer is
a plaintiff or petitioner because he or she is a Director or Officer;
provided, however, that any such Proceeding under this subsection (iv)
must be authorized by a majority vote of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the
extent such amendment permits or requires the Corporation to provide
broader indemnification rights than the Statute permitted or required the
Corporation to provide prior to such amendment.
8.02. Mandatory Indemnification of Directors and Officers.
To the fullest extent permitted or required by the Statute, the
Corporation shall indemnify a Director or Officer against all Liabilities
incurred by or on behalf of such Director or Officer in connection with a
Proceeding in which the Director or Officer is a Party because he or she
is a Director or Officer.
8.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 8.02 shall make a written request therefor to the Corporation.
Subject to Section 8.03(b), within sixty days of the Corporation's receipt
of such request, the Corporation shall pay or reimburse the Director or
Officer for the entire amount of Liabilities incurred by the Director or
Officer in connection with the subject Proceeding (net of any Expenses
previously advanced pursuant to Section 8.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 8.02 if, within such sixty-day period, (i)
a Disinterested Quorum, by a majority vote thereof, determines that the
Director or Officer requesting indemnification engaged in misconduct
constituting a Breach of Duty or (ii) a Disinterested Quorum cannot be
obtained.
(c) In either case of nonpayment pursuant to Section 8.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 8.04, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether
indemnification should be denied hereunder.
(d) (i) If the Board does not authorize an Authority to
determine the Director's or Officer's right to indemnification hereunder
within such sixty-day period and/or (ii) if indemnification of the
requested amount of Liabilities is paid by the Corporation, then it shall
be conclusively presumed for all purposes that a Disinterested Quorum has
affirmatively determined that the Director or Officer did not engage in
misconduct constituting a Breach of Duty and, in the case of subsection
(i) above (but not subsection (ii)), indemnification by the Corporation of
the requested amount of Liabilities shall be paid to the Director or
Officer immediately.
8.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section 8.03,
then the Director or Officer requesting indemnification shall have the
absolute discretionary authority to select one of the following as such
Authority:
(i) An independent legal counsel; provided, that such
counsel shall be mutually selected by such Director or Officer
and by a majority vote of a Disinterested Quorum or, if a
Disinterested Quorum cannot be obtained, then by a majority vote
of the Board;
(ii) A panel of three arbitrators selected from the panels
of arbitrators of the American Arbitration Association in
Wisconsin; provided, that (A) one arbitrator shall be selected
by such Director or Officer, the second arbitrator shall be
selected by a majority vote of a Disinterested Quorum or, if a
Disinterested Quorum cannot be obtained, then by a majority vote
of the Board, and the third arbitrator shall be selected by the
two previously selected arbitrators, and (B) in all other
respects (other than this Article VIII), such panel shall be
governed by the American Arbitration Association's then existing
Commercial Arbitration Rules; or
(iii) A court pursuant to and in accordance with Section
180.0854 of the Statute.
(b) In any such determination by the selected Authority there
shall exist a rebuttable presumption that the Director's or Officer's
conduct did not constitute a Breach of Duty and that indemnification
against the requested amount of Liabilities is required. The burden of
rebutting such a presumption by clear and convincing evidence shall be on
the Corporation or such other party asserting that such indemnification
should not be allowed.
(c) The Authority shall make its determination within sixty
days of being selected and shall submit a written opinion of its
conclusion simultaneously to both the Corporation and the Director or
Officer.
(d) If the Authority determines that indemnification is
required hereunder, the Corporation shall pay the entire requested amount
of Liabilities (net of any Expenses previously advanced pursuant to
Section 8.05), including interest thereon at a reasonable rate, as
determined by the Authority, within ten days of receipt of the Authority's
opinion; provided, that, if it is determined by the Authority that a
Director or Officer is entitled to indemnification against Liabilities'
incurred in connection with some claims, issues or matters, but not as to
other claims, issues or matters, involved in the subject Proceeding, the
Corporation shall be required to pay (as set forth above) only the amount
of such requested Liabilities as the Authority shall deem appropriate in
light of all of the circumstances of such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under
this Section 8.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
8.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to time or
at any time, within ten days after the receipt of the Director's or
Officer's written request therefor, the reasonable Expenses of the
Director or Officer as such Expenses are incurred; provided, the following
conditions are satisfied:
(i) The Director or Officer furnishes to the Corporation
an executed written certificate affirming his or her good faith
belief that he or she has not engaged in misconduct which
constitutes a Breach of Duty; and
(ii) The Director or Officer furnishes to the Corporation
an unsecured executed written agreement to repay any advances
made under this Section 8.05 if it is ultimately determined by
an Authority that he or she is not entitled to be indemnified by
the Corporation for such Expenses pursuant to Section 8.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 8.05, such Director or Officer
shall not be required to pay interest on such amounts.
8.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify a
director or officer of an Affiliate (who is not otherwise serving as a
Director or Officer) against all Liabilities, and shall advance the
reasonable Expenses, incurred by such director or officer in a Proceeding
to the same extent hereunder as if such director or officer incurred such
Liabilities because he or she was a Director or Officer, if such director
or officer is a Party thereto because he or she is or was a director or
officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a
Director or Officer, to the extent he or she has been successful on the
merits or otherwise in defense of a Proceeding, for all Expenses incurred
in the Proceeding if the employee was a Party because he or she was an
employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify (to the
extent not otherwise provided in Section 8.06(b) hereof) against
Liabilities incurred by, and/or provide for the allowance of reasonable
Expenses of, an employee or authorized agent of the Corporation acting
within the scope of his or her duties as such and who is not otherwise a
Director or Officer.
8.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or
was an employee or authorized agent of the Corporation against any
Liability asserted against or incurred by such individual in his or her
capacity as such or arising from his or her status as such, regardless of
whether the Corporation is required or permitted to indemnify against any
such Liability under this Article VIII.
8.08. Notice to the Corporation. A Director, Officer or
employee shall promptly notify the Corporation in writing when he or she
has actual knowledge of a Proceeding which may result in a claim of
indemnification against Liabilities or allowance of Expenses hereunder,
but the failure to do so shall not relieve the Corporation of any
liability to the Director, Officer or employee hereunder unless the
Corporation shall have been irreparably prejudiced by such failure (as
determined, in the case of Directors or Officers only, by an Authority
selected pursuant to Section 8.04(a)).
8.09. Severability. If any provision of this Article VIII
shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article VIII
contravene public policy, this Article VIII shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force
and effect, and any such provisions which are invalid or inoperative or
which contravene public policy shall be deemed, without further action or
deed by or on behalf of the Corporation, to be modified, amended and/or
limited, but only to the extent necessary to render the same valid and
enforceable; it being understood that it is the Corporation's intention to
provide the Directors and Officers with the broadest possible protection
against personal liability allowable under the Statute.
8.10. Nonexclusivity of Article VIII. The rights of a
Director, Officer or employee (or any other person) granted under this
Article VIII shall not be deemed exclusive of any other rights to
indemnification against Liabilities or allowance of Expenses which the
Director, Officer or employee (or such other person) may be entitled to
under any written agreement, Board resolution, vote of shareholders of the
Corporation or otherwise, including, without limitation, under the
Statute. Nothing contained in this Article VIII shall be deemed to limit
the Corporation's obligations to indemnify against Liabilities or allow
Expenses to a Director, Officer or employee under the Statute.
8.11. Contractual Nature of Article VIII; Repeal or
Limitation of Rights. This Article VIII shall be deemed to be a contract
between the Corporation and each Director, Officer and employee of the
Corporation and any repeal or other limitation of this Article VIII or any
repeal or limitation of the Statute or any other applicable law shall not
limit any rights of indemnification against Liabilities or allowance of
Expenses then existing or arising out of events, acts or omissions
occurring prior to such repeal or limitation, including, without
limitation, the right to indemnification against Liabilities or allowance
of Expenses for Proceedings commenced after such repeal or limitation to
enforce this Article VIII with regard to acts, omissions or events arising
prior to such repeal or limitation.
ARTICLE IX. CONFLICTS OF INTEREST
9.01. Conflict of Interest Policy. No director, officer or
other employee of the corporation shall acquire a cranberry producing
property or a controlling interest in any entity which owns or operates
such a property without first offering the opportunity to purchase such
property or controlling interest to the corporation. This prohibition is
not applicable to such properties or interests owned by any director,
officer or employee of the corporation prior to the date of incorporation
of this corporation. This Section 9.01 may only be amended or deleted
pursuant to a vote of the corporation's shareholders.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. These bylaws may be amended or
repealed and new bylaws may be adopted by the shareholders at any annual
or special meeting of the shareholders at which a quorum is in attendance.
10.02. By Directors. Except as otherwise provided by the
Wisconsin Business Corporation Law or the articles of incorporation, these
bylaws may also be amended or repealed and new bylaws may be adopted by
the Board of Directors; provided, however, that the shareholders in
adopting, amending or repealing a particular bylaw may provide therein
that the Board of Directors may not amend, repeal or readopt that bylaw.
10.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors which would be inconsistent
with the bylaws then in effect but which is taken or authorized by
affirmative vote of not less than the number of votes or the number of
directors required to amend the bylaws so that the bylaws would be
consistent with such action shall be given the same effect as though the
bylaws had been temporarily amended or suspended so far, but only so far,
as is necessary to permit the specific action so taken or authorized.
EXHIBIT 5
FOLEY & LARDNER
A T T O R N E Y S A T L A W
FIRSTAR CENTER
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5367
A MEMBER OF GLOBALEX
WITH MEMBER OFFICES IN
MADISON BERLIN
CHICAGO TELEPHONE (414) 271-2400 BRUSSELS
WASHINGTON, D.C. DRESDEN
JACKSONVILLE TELEX 26-819 FRANKFURT
ORLANDO LONDON
TALLAHASSEE (FOLEY LARD MIL) PARIS
TAMPA SINGAPORE
WEST PALM BEACH FACSIMILE (414) 297-4900 STUTTGART
TAIPEI
WRITER'S DIRECT LINE
July 22, 1996
Northland Cranberries, Inc.
800 First Avenue South
Wisconsin Rapids, Wisconsin 54496
Ladies and Gentlemen:
We have acted as counsel for Northland Cranberries, Inc., a
Wisconsin corporation (the "Company"), in connection with the preparation
of the Company's Registration Statement on Form S-4 (the "Registration
Statement"), including the prospectus constituting a part thereof (the
"Prospectus"), to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"),
relating to the proposed issuance from time to time by the Company of up
to 500,000 shares ("Shares") of the Company's Common Stock, $.01 par value
(the "Common Stock"), in the manner set forth in the Registration
Statement and Prospectus. In connection therewith, we have examined: (a)
the Registration Statement, including the Prospectus; (b) the Company's
Articles of Incorporation and By-laws, as amended to date and as proposed
to be restated on the effective date of the Registration Statement; (c)
proceedings of the Board of Directors of the Company relating to the
authorization for issuance of the Shares; and (d) such other proceedings,
documents and records as we have deemed necessary to enable us to render
this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
Wisconsin Business Corporation Law ("WBCL").
2. The Shares, when issued as described in the Registration
Statement and Prospectus and pursuant to the definitive acquisition
agreement applicable to such issuance, if any, will be legally issued,
fully paid and nonassessable and no personal liability will attach to the
ownership thereof, except for debts owing to employees of the Company for
services performed, but not exceeding six months' service in any one case,
as provided in Section 180.0622(2)(b) of the WBCL. (See Local 257 of
Hotel and Restaurant Employees and Bartenders International Union v.
Wilson Street East Dinner Playhouse, Inc., Case No. 82-CV-0023, Cir. Ct.
Branch 1, Dane County, Wisconsin); provided that prior to issuance of the
Shares there shall be taken various actions or proceedings in the manner
contemplated by us as counsel, which shall include the following:
(a) the completion of the requisite procedures under the
applicable provisions of the Act and applicable state
securities laws and regulations; and
(b) to the extent we determine necessary under applicable
law, any applicable agreements and/or the Company's
governing documents, the adoption of resolutions by
the Board of Directors of the Company authorizing the
issuance of any such Shares.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference of this firm therein. In
giving our consent, we do not admit that we are "experts" within the
meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/FOLEY & LARDNER
FOLEY & LARDNER
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Northland Cranberries, Inc. on Form S-4 of our report dated
June 6, 1995, incorporated by reference in the Annual Report on Form 10-K
of Northland Cranberries, Inc. for the year ended March 3, 1995 and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
July 19, 1996
