Registration of a Class of Securities — Form 8-A Filing Table of Contents
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1: 8-A12B Form 8-A Pursuant to Section 12(B) HTML 15K
2: EX-1 Underwriting Agreement HTML 31K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, HTML 35K Liquidation or Succession
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Vireo Mfg. Corporation (“the Corporation”), a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby certify:
That pursuant to the authority conferred upon the Board of Directors by the Certificate of
Incorporation of the Corporation, the Board of Directors on October 15, 1996, adopted the following
resolution creating a series of 200,000 (two hundred thousand) shares of Preferred Stock, par value
$0.01 per share, designated as Series A Junior Participating Cumulative Preferred Stock;
RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation
in accordance with the provisions of its Certificate of Incorporation, a series of Preferred Stock
of the Corporation be, and it hereby is, created, and that the designation and amount thereof and
the voting powers, preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions thereof, are as
follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
Series A Junior Participating Cumulative Preferred Stock, par value $0.01 per share (the “Series A
Preferred Stock”), and the number of shares constituting such series shall be 200,000 (two hundred
thousand).
Section 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred Stock, in preference to the holders of shares
of Common Stock, par value $.01 per share, of the Corporation (the “Common Stock”) and of any other
junior stock of the Corporation that may be outstanding, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the tenth day of January, April, July and October in each year (each
such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (i) $.25 per share ($1.00 per annum), or (ii) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock, or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event that the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise) into
a greater or lesser number of shares of Common Stock, then and in each such event, the amount to
which the holder of each share of Series A Preferred Stock was entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event, and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock
as provided in paragraph (a) of this Section 2 immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Compton Stock);
provided, however, that in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $.25 per share ($1.00 per annum) on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares of Series A Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which cases such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall cumulate
but shall not bear interest. Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the time accrued and
payable on such
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shares shall be allocated pro rata on a share-by-share basis among all such shares
at the tine outstanding. The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes (and
each one one-hundredth of a share of Series A Preferred Stock shall entitle the holder thereof to
one vote) on all matters submitted to a vote of the stockholders of the Corporation. In the event
that the Corporation shall at any time declare or pay any dividend on Common Stock payable in
shares of Common Stock or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then and in each such
event, the number of votes per share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event, and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided in the Certificate of Incorporation of the Corporation or
herein or by law, the holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(c) In addition, the holders of shares of Series A Preferred Stock shall have the following
special voting rights.
(i) In the event that at any time dividends on Series A Preferred Stock, whenever
accrued and whether or not consecutive, shall not have been paid or declared and a sum
sufficient for the payment thereof set aside, in an amount equivalent to six quarterly
dividends on all shares of Series A Preferred Stock at the time outstanding, then and in
each such event, the holders of shares of Series A Preferred Stock and each other series of
preferred stock now or hereafter issued that shall be accorded such class voting right by
the Board of Directors and that shall have the right to elect one director (or, in the event
any such other series is entitled to a greater number of directors, such number of
directors, which shall be cumulative with and not in addition to the director provided for
herein, such director or directors which the holders of Series A Preferred Stock and any
such other series of preferred stock are entitled to elect being hereinafter referred to as
“Special Directors”) as the result of a prior or subsequent default in payment of dividends
on such series (each such other series being hereinafter called “Other Series of Preferred
Stock”), voting separately as a class without regard to series, shall be entitled to elect
the Special Director at the next annual meeting of stockholders of the Corporation, in
addition to the directors to be elected by the holders of all shares of the Corporation
entitled to vote for the election of directors, and the holder of all shares (including the Series A
Preferred
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Stock) otherwise entitled to vote for directors, voting separately as a class,
shall be entitled to elect the remaining members of the Board of Directors, provided that
the Series A Preferred Stock and each Other Series of Preferred Stock, voting as a class,
shall not have the right to elect more than one Special Director (in addition to any Special
Director to which the holders of any Other Series of Preferred Stock are then entitled).
Such special voting right of the holders of shares of Series A Preferred Stock may be
exercised until all dividends in default on the Series A Preferred Stock shall have been
paid in full or declared and funds sufficient therefor set aside, and when so paid or
provided for, such special voting right of the holders of shares of Series A Preferred Stock
shall cease, but subject always to the same provisions for the vesting of such special
voting rights in the event of any such future dividend default or defaults.
(ii) At any time after such special voting rights shall have so vested in the holders
of shares of Series A Preferred Stock, the Secretary of the Corporation may, and upon the
written request of the holders of record of 10% or more in number of the shares of Series A
Preferred Stock and each Other Series of Preferred Stock then outstanding addressed to the
Secretary at the principal executive office of the Corporation shall, call a special meeting
of the holders of shares of Preferred Stock so entitled to vote, for the election of the
Special Directors to be elected by them as herein provided, to be held within 60 days after
such call and at the place and upon the notice provided by law and in the Bylaws for the
holding of meetings of stockholders; provided, however, that the Secretary shall not be
required to call such special meeting in the case of any such request received less than 90
days before the date fixed for any annual meeting of stockholders, and if in such case such
special meeting is not called or held, the holders of shares of Preferred Stock so entitled
to vote shall be entitled to exercise the special voting rights provided in this paragraph
at such annual meeting. If any such special meeting required to be called as above provided
shall not be called by the Secretary within 30 days after receipt of any such request, then
the holders of record of 10% or more in number of the shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding may designate in writing one of their
number to call such meeting, and the person so designated may, at the expense of the
Corporation, call such meeting to be held at the place and upon the notice given by such
person, and for that sole purpose shall have access to the stock books of the Corporation.
No such special meeting and no adjournment thereof shall be held on a date later than 60
days before the annual meeting of stockholders. If, at any meeting so called or at any
annual meeting held while the holders of shares of Series A Preferred Stock have the special
voting rights provided for in this paragraph, the holders of not less than 40% of the
aggregate voting power of Series A Preferred Stock and each Other Series of Preferred Stock
then outstanding are present in person or by proxy, which percentage shall be sufficient to
constitute a quorum for the election of additional directors as herein provided, the then
authorized number of directors of the Corporation shall be increased by the number of
Special Directors to be elected, as of the time of such special meeting or the time of the
first such annual meeting held while such holders have special voting rights and such quorum
is present, and the holders of shares of Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, shall be entitled to elect the Special Director or
Directors so provided for. If the directors of the Corporation are then divided into classes under provisions of the
Certificate of Incorporation of the Corporation or the Bylaws, the Special Director or
Directors shall belong to each class of
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directors in which a vacancy is created as a result
of such increase in the authorized number of directors. If the foregoing expansion of the
size of the Board of Directors shall not be valid under applicable law, then the holders of
shares of Series A Preferred Stock and of each Other Series of Preferred Stock, voting as a
class, shall be entitled, at the meeting of stockholders at which they would otherwise have
voted, to elect a Special Director or Directors to fill any then existing vacancies on the
Board of Directors, and shall additionally be entitled, at such meeting and each subsequent
meeting of stockholders at which directors are elected, to elect all of the directors then
being elected until by such class vote the appropriate number of Special Directors has been
so elected.
(iii) Upon the election at such meeting by the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock, voting as a class, of the Special Director
or Directors they are entitled so to elect, the persons so elected, together with such
persons as may be directors or as may have been elected as directors by the holders of all
shares (including Series A Preferred Stock) otherwise entitled to vote for directors, shall
constitute the duly elected directors of the Corporation. Each Special Director so elected
by holders of shares of Series A Preferred Stock and each Other Series of Preferred Stock,
voting as a class, shall serve until the next annual meeting or until their respective
successors shall be elected and qualified, or if any such Special Director is a member of a
class of directors under provisions dividing the directors into classes, each such Special
Director shall serve until the annual meeting at which the term of office of such Special
Director’s class shall expire or until such Special Director’s successor shall be elected
and shall qualify, and at each subsequent meeting of stockholders at which the directorship
of any Special Director is up for election, said special class voting rights shall apply in
the reelection of such Special Director or in the election of such Special Director’s
successor; provided, however, that whenever the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock shall be divested of the special rights to
elect one or more Special Directors as above provided, the terms of office of all persons
elected as Special Directors, or elected to fill any vacancies resulting from the death,
resignation, or removal of Special Directors shall forthwith terminate (and the number of
directors shall be reduced accordingly).
(iv) If, at any time after a special meeting of stockholders or an annual meeting of
stockholders at which the holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock, voting as a class, have elected one or more Special Directors as
provided above, and while the holders of shares of Series A Preferred Stock and each Other
Series of Preferred Stock shall be entitled so to elect one or more Special Directors, the
number of Special Directors who have been so elected (or who by reason of one or more
resignations, deaths or removals have succeeded any Special Directors so elected) shall by
reason of resignation, death or removal be reduced the vacancy in the Special Directors may
be filled by any one or more remaining Special Director or Special Directors. In the event
that such election shall not occur within 30 days after such vacancy arises, or in the event
that there shall not be incumbent at least one
Special Director, the Secretary of the Corporation may, and upon the written request of
the holders of record of 10% or more in number of the shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding addressed to the Secretary at the
principal office of the Corporation shall, call a special meeting of the holders of shares of
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Series A Preferred Stock and each Other Series of Preferred Stock so entitled to vote,
for an election to fill such vacancy or vacancies, to be held within 60 days after such call
and at the place and upon the notice provided by law and in the Bylaws for the holding of
meetings of stockholders; provided, however, that the Secretary shall not be required to
call such special meeting in the case of any such request received less than 90 days before
the date fixed for any annual meeting of stockholders, and if in such case such special
meeting is not called, the holders of shares of Preferred Stock so entitled to vote shall be
entitled to fill such vacancy or vacancies at such annual meeting. If any such special
meeting required to be called as above provided shall not be called by the Secretary within
30 days after receipt of any such request, then the holders of record of 10% or more in
number of the shares of Series A Preferred Stock and each Other Series of Preferred Stock
then outstanding may designate in writing one of their number to call such meeting, and the
person so designated may, at the expense of the Corporation, call such meeting to be held at
the place and upon the notice above provided, and for that purpose shall have access to the
stock books of the Corporation; no such special meeting and no adjournment thereof shall be
held on a date later than 60 days before the annual meeting of stockholders.
(d) Nothing herein shall prevent the directors or stockholders from taking any action to
increase the number of authorized shares of Series A Preferred Stock, or increasing the number of
authorized shares of Preferred Stock of the same class as the Series A Preferred Stock or the
number of authorized shares of Common Stock, or changing the par value of the Common Stock or
Preferred Stock, or issuing options, warrants or rights to any class of stock of the Corporation as
authorized by the Certificate of Incorporation of the Corporation, as it may hereafter be amended.
(e) Except as set forth herein, holders of shares of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the extent they are
entitled to vote as set forth in the Certificate of Incorporation of the Corporation or herein or
by law) for taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever any dividends or other distributions payable on the Series A Preferred Stock as
provided in Section 2 hereof are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall
have been paid in full, the Corporation shall not, directly or indirectly:
(i) declare or pay dividends on, or make any other distributions with respect to, any
shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on, or make any other distributions with respect to, any
shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, except dividends paid ratably on shares of
the Series A Preferred Stock and all such parity stock on which
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dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration, directly or indirectly, any shares of stock of the Corporation
unless the Corporation could, under paragraph (a) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of preferred stock, without designation as to series, and may be
reissued as part of any series of preferred stock created by resolution or resolutions of the Board
of Directors (including Series A Preferred Stock), subject to the conditions and restrictions on
issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made to:
(a) the holders of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received the greater of (i) $1.00 per share ($.001
per one one-hundredth of a share), plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, or (ii) an aggregate
amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of shares of Common Stock; or
(b) the holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions
made ratably on the Series A Preferred Stock and all other such parity stock in proportion to the
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total amounts to which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
In the event that the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise) into greater or lesser
number of shares of Common Stock, then and in each such event, the aggregate amount to which the
holder of each share of Series A Preferred Stock was entitled immediately prior to such event under
the proviso in clause (a) of the preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event, and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In the event that the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities, cash and/or any other property,
or otherwise changed, then and in each such event, the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of Common Stock, then and
in each such event, the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event, and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable. Notwithstanding the foregoing, the Corporation may acquire shares of Series A
Preferred Stock in any other manner permitted by law, the Certificate of Incorporation of the
Corporation or herein.
Section 9. Rank. Unless otherwise provided in the Certificate of Incorporation of the
Corporation or a Certificate of Designations relating to a subsequent series of preferred stock of
the Corporation, the Series A Preferred Stock shall rank junior to all other series of the
Corporation’s preferred stock as to the payment of dividends and the distribution of assets on
liquidation, dissolution or winding up, and senior to the Common Stock of the Corporation.
Section 10. Amendment. The Certificate of Incorporation of the Corporation shall not
be amended in any manner that would materially and adversely alter or change the powers,
preferences or special rights of the Series A Preferred Stock without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock,
voting together as a single series.
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Dates Referenced Herein and Documents Incorporated by Reference