Articles of Incorporation - Buffalo Wild Wings Inc.
ARTICLES OF AMENDMENT AND
RESTATED ARTICLES OF INCORPORATION
OF
BUFFALO WILD WINGS, INC.
The undersigned hereby certifies that Restated Articles of
Incorporation of Buffalo Wild Wings, Inc., in the form attached hereto as
Exhibit, were duly adopted pursuant to Minnesota Statutes chapter 302A.
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
Dated: June 1, 1998 /s/ Sally J. Smith
-----------------------------------------
Sally J. Smith, President
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Exhibit A
RESTATED ARTICLES OF INCORPORATION
OF
BUFFALO WILD WINGS, INC.
ARTICLE 1 - NAME
----------------
1.1) The name of the corporation shall be Buffalo Wild Wings, Inc.
ARTICLE 2 - REGISTERED OFFICE
-----------------------------
2.1) The registered office of the corporation is located at 1919
Interchange Tower, 600 South Highway 169, Minneapolis, Minnesota 55426.
ARTICLE 3 - CAPITAL STOCK
-------------------------
3.1) Authorized Shares. The aggregate number of shares the corporation
has authority to issue shall be 20,000,000 shares, which shall have a par value
of $.01 per share solely for the purpose of a statute or regulation imposing a
tax or fee based upon the capitalization of the corporation, and which shall
consist of 15,000,000 shares of Common Stock and 5,000,000 shares of
Undesignated Stock. The Board of Directors of the corporation is authorized to
establish from the Undesignated Stock, by resolution adopted and filed in the
manner provided by law, one or more classes or series of shares, to designate
each such class or series (which may include but is not limited to designation
as additional Common Stock), and to fix the relative rights and preferences of
each such class or series.
3.2) Issuance of Shares. The Board of Directors of the corporation is
authorized from time to time to accept subscriptions for, issue, sell and
deliver shares of any class or series of the corporation to such persons, at
such times and upon such terms and conditions as the Board shall determine,
establishing a price in money or other consideration, or a minimum price, or a
general formula or method by which the price will be determined.
3.3) Issuance of Rights to Purchase Shares. The Board of Directors is
further authorized from time to time to grant and issue rights to subscribe for,
purchase, exchange securities for, or convert securities into, shares of the
corporation of any class or series, and to fix the terms, provisions and
conditions of such rights, including the exchange or conversion basis or the
price at which such shares may be purchased or subscribed for.
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ARTICLE 4 - RIGHTS OF SHAREHOLDERS
----------------------------------
4.1) No Preemptive Rights. No shares of any class or series of the
corporation shall entitle the holders to any preemptive rights to subscribe for
or purchase additional shares of that class or series or any other class or
series of the corporation now or hereafter authorized or issued.
4.2) No Cumulative Voting Rights. There shall be no cumulative voting
by the shareholders of the corporation.
ARTICLE 5 - DIRECTORS
---------------------
5.1) Written Action by Directors. Any action required or permitted to
be taken at a Board meeting may be taken by written action signed by all of the
directors.
ARTICLE 6 - MERGER, EXCHANGE, SALE OF ASSETS, AND DISSOLUTION
-------------------------------------------------------------
6.1) Where approval of shareholders is required by law, the affirmative
vote of the holders of at least a majority of the voting power of all shares
entitled to vote shall be required to authorize the corporation (i) to merge
into or with one or more other corporations, (ii) to exchange its shares for
shares of one or more other corporations, (iii) to sell, lease, transfer or
otherwise dispose of all or substantially all of its property and assets,
including its good will, or (iv) to commence voluntary dissolution.
ARTICLE 7 - AMENDMENT OF ARTICLES OF INCORPORATION
--------------------------------------------------
7.1) After the issuance of shares by the corporation, any provision
contained in these Articles of Incorporation may be amended, altered, changed or
repealed by the affirmative vote of the holders of at least a majority of the
voting power of all shares entitled to vote or such greater percentage as may be
otherwise prescribed by the laws of the State of Minnesota.
ARTICLE 8 - LIMITATION OF DIRECTOR LIABILITY
--------------------------------------------
8.1) To the fullest extent permitted by Chapter 302A, Minnesota
Statutes, as the same exists or may hereafter be amended, a director of this
corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director.
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STATEMENT OF DESIGNATION OF SHARES
OF
BUFFALO WILD WINGS, INC.
The undersigned hereby certifies that the resolutions set forth on
Exhibit A attached hereto were duly adopted by a Special Committee of the Board
of Directors of Buffalo Wild Wings, Inc. on November 29, 1999 pursuant to
authority granted to such Special Committee by the Board of Directors on
November 19, 1999.
I swear that the foregoing is true and accurate and that I have
authority to sign this document on behalf of the corporation.
December 2, 1999
BUFFALO WILD WINGS, INC.
Sally J. Smith
------------------------------------------
Sally J. Smith
President and Chief Executive Officer
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EXHIBIT A
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STATEMENT OF DESIGNATION OF SERIES A PREFERRED STOCK OF
BUFFALO WILD WINGS, INC.
a Minnesota Corporation
WHEREAS, the Board of Directors of Buffalo Wild Wings, Inc., a
Minnesota corporation (the "Corporation"), is authorized by the Articles of
Incorporation to establish from the 5,000,000 authorized but undesignated shares
of capital stock one or more classes or series of shares, and to establish from
time to time the number of shares to be included in each such series and to fix
the designation, powers, preferences and rights of the shares of each such class
or series and the qualifications, limitations or restrictions thereof by filing
a statement pursuant to the applicable law of the State of Minnesota; and
WHEREAS, the Board of Directors desires to authorize the issuance of
Series A Preferred Stock, to establish the number of shares to be included in
such series and to fix the designation, powers, preferences and rights of the
shares of such series and the qualifications, limitations and restrictions
thereof;
NOW, THEREFORE, BE IT RESOLVED, that of the 5,000,000 undesignated
shares currently authorized, 4,000,000 shares are hereby designated as Series A
Preferred Stock, which shares shall have the following designation, powers,
preferences and rights and qualifications, limitations and restrictions thereon:
The following terms used herein shall have the following definitions:
"Capital Transaction" shall mean any of the following: (i) one or more
mergers, consolidations, liquidations, sales of more than 50% of the assets of
the Corporation or other similar corporate actions pursuant to which the
Corporation or the holders of equity interests in the Corporation receive cash,
securities or other property; (ii) at least a majority of the voting securities
of the Corporation is sold; or (iii) a Qualified Public Offering.
"Conversion Price" shall mean initially $2.788291; provided, that such
Conversion Price is subject to adjustment from time to time as set forth herein.
"Determination Date" shall have the meaning set forth in the form of
Warrant attached as Exhibit C to the Purchase Agreement.
"Liquidation Value" shall mean $2.788291.
"Liquidity Event" shall mean (i) December 2, 2004, (ii) the occurrence
of a Capital Transaction, (iii) the occurrence of an Event of Default as defined
in Section 8.1 of the Purchase Agreement, (iv) the occurrence of any event or
circumstance which requires the Corporation to repay, repurchase, redeem or
otherwise to retire any equity security of the Corporation or which permits the
holder of such equity security to require any such repayment, repurchase,
redemption or retirement, or (v) the employment of Sally Smith is terminated for
any reason, except upon
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such Person's death or disability, and the Corporation shall not have hired a
replacement for such Person who has been approved by the Majority Holders (as
defined in the Purchase Agreement) within 120 days thereafter, such approval not
to be unreasonably withheld.
"Management Stock Option Plan" shall mean the Corporation's stock
option plan in existence on the date of the Purchase Agreement pursuant to which
the Corporation has the right to grant options or warrants to employees or
consultants of the Corporation for up to a maximum of 1,500,000 shares of Common
Stock.
"Purchase Agreement" shall mean that certain Securities Purchase
Agreement, dated as of December 2, 1999 among the Corporation, GMN Investors II,
L.P., Regent Capital Partners, L.P., Carefree Capital Partners, Limited
Partnership, a Wyoming Limited Partnership, and the other investors listed on
Exhibit A attached thereto.
"Purchase Price" shall mean $2.788291.
"Qualified Public Offering" shall mean the closing of the Corporation's
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended, covering the offer and sale of
shares of Common Stock in which not less than $20,000,000 in gross proceeds are
received by the Corporation for the account of the Corporation; provided that in
the case of a public offering underwritten by one or more of the investment
banking firms listed on Schedule 1.4 attached to the Purchase Agreement, the
amount of gross proceeds for purposes of this definition shall be $15,000,000.
"Series A Preferred Stock" shall mean have the meaning set forth in
Section 1 hereof.
"Stockholders' Agreement" shall mean that certain Stockholders'
Agreement dated as of December 2, 1999 among the Corporation, GMN Investors II,
L.P., Regent Capital Partners, L.P., Carefree Capital Partners, Limited
Partnership, a Wyoming Limited Partnership, and the other investors listed on
Exhibit A attached thereto, and certain other stockholders of the Corporation,
as such Agreement may be amended, restated, modified or supplemented in
accordance with the terms thereof.
"Warrant Shares" shall mean, collectively, (a) Common Stock issuable
upon exercise of the Warrants in accordance with their terms, (b) any shares of
Common Stock into which such shares of Common Stock have been converted, (c) any
capital stock or other securities into which or for which such Common Stock
shall have been converted or exchanged pursuant to any recapitalization,
reorganization or merger of the Corporation, and (d) any shares of capital stock
issued with respect to the foregoing pursuant to a stock dividend or a stock
split.
"Warrants" shall mean the Warrants of the Corporation issued pursuant
to Section 2.1 of the Purchase Agreement and any other Warrants transferred to
any other holders pursuant to Section 12 thereof.
1. Designation. A series of Preferred Stock, designated Series A
Preferred Stock, $.01 par value per share (the "Series A Preferred Stock"), is
hereby provided for, which series shall have the rights, privileges and
preferences set forth below.
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2. Authorized Number. The number of shares constituting the Series A
Preferred Stock shall be 4,000,000 shares.
3. Dividends. The holders of the issued and outstanding shares of the
Series A Preferred Stock shall be entitled to receive dividends out of any
assets legally available therefor, prior and in preference to any declaration or
payment of any dividend (payable other than in Common Stock or other securities
and rights convertible into or entitling the holder thereof to receive, directly
or indirectly, additional shares of Common Stock of the Corporation) on the
Common Stock of the Corporation, at the rate of twelve percent (12%) of the
Purchase Price thereof per annum per share (calculated on the basis of a 360-day
year commencing as of the date of issue thereof), compounded annually and
payable in arrears on redemption, or if greater (as determined on a per annum
and as converted basis for the Series A Preferred Stock), an amount equal to
that paid on any other outstanding shares of this Corporation. Such dividends
shall accrue cumulatively on a daily basis.
4. Liquidation, Dissolution or Winding Up.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of
Series A Preferred Stock then outstanding shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
stockholders before any payment shall be made to the holders of Common
Stock or any other class or series of stock ranking on liquidation
junior to the Series A Preferred Stock by reason of their ownership
thereof, an amount equal to the Liquidation Value per share (subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination or other similar recapitalization affecting such shares),
plus any dividends declared but unpaid on such shares.
(b) After the payment of all preferential amounts required to
be paid to the holders of Series A Preferred Stock, upon the
dissolution, liquidation or winding up of the Corporation, the
remaining assets and funds of the Corporation available for
distribution to its stockholders shall be distributed among the holders
of shares of Common Stock and/or any other class or series of stock
ranking on liquidation junior to the Series A Preferred Stock.
5. Voting. Each holder of outstanding shares of Series A Preferred
Stock shall be entitled to the number of votes equal to the number of whole
shares of Common Stock into which the shares of Series A Preferred Stock held by
such holder are convertible (as adjusted from time to time pursuant to Section 6
hereof) as of the record date, at each meeting of stockholders of the
Corporation (and written actions of stockholders in lieu of meetings) with
respect to any and all matters presented to the stockholders of the Corporation
for their action or consideration. Except as provided by law or by the
provisions of Section 9 below or by the provisions establishing any other series
of stock, holders of Series A Preferred Stock and of any other outstanding
series of stock shall vote together with the holders of Common Stock as a single
class.
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6. Optional Conversion. The holders of the Series A Preferred Stock
shall have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series A Preferred Stock
shall be convertible, at the option of the holder thereof, at any time
and from time to time, and without the payment of additional
consideration by the holder thereof, into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing the
sum of the Purchase Price by the Conversion Price in effect at the time
of conversion. Such Conversion Price, and the rate at which shares of
Series A Preferred Stock may be converted into shares of Common Stock,
shall be subject to adjustment as provided below.
In the event of a notice of redemption of any shares of Series
A Preferred Stock pursuant to Section 8 hereof, the Conversion Right of
the shares designated for redemption shall terminate at the close of
business on the first full day preceding the date fixed for redemption,
unless the redemption price is not paid when due, in which case the
Conversion Right for such shares shall continue until such price is
paid in full. In the event of a liquidation of the Corporation, the
Conversion Right shall terminate at the close of business on the first
full business day preceding the date fixed for the payment of any
amounts distributable on liquidation to holders of Series A Preferred
Stock.
(b) Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of shares of the Series A Preferred
Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such
fraction multiplied by the then effective applicable Conversion Price.
(c) Mechanics of Conversion.
(i) In order for a holder of Series A Preferred Stock
to convert shares of Series A Preferred Stock into shares of
Common Stock, such holder shall surrender the certificate or
certificates for such shares of Series A Preferred Stock, at
the office of the transfer agent for the Series A Preferred
Stock (or at the principal office of the Corporation if the
Corporation serves as its own transfer agent), together with
written notice that such holder elects to convert all or any
number of the shares of the Series A Preferred Stock
represented by such certificate or certificates. Such notice
shall state such holder's name or the names of the nominees in
which such holder wishes the certificate or certificates for
shares of Common Stock to be issued. If required by the
Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by a written instrument or instruments
of transfer, in form satisfactory to the Corporation, duly
executed by the registered holder or his or its attorney duly
authorized in writing. The date of receipt of such
certificates and notice by the transfer agent (or by the
Corporation if the Corporation serves as its own transfer
agent) shall be the conversion date (the "Conversion Date").
The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such
holder of Series A Preferred Stock, or to his or its nominees,
a certificate or certificates for the number of shares of
Common Stock to which such holder shall be entitled, together
with cash in lieu of any fraction of a share.
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(ii) The Corporation shall at all times when the
Series A Preferred Stock shall be outstanding, reserve and
keep available out of its authorized but unissued stock, for
the purpose of effecting the conversion of the Series A
Preferred Stock, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Series A Preferred
Stock. Before taking any action which would cause an
adjustment reducing the applicable Conversion Price below the
then par value of the shares of Common Stock issuable upon
conversion of the applicable Series A Preferred Stock, the
Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted
Conversion Price.
(iii) All shares of Series A Preferred Stock which
shall have been surrendered for conversion as herein provided
shall no longer be deemed to be outstanding and all rights
with respect to such shares, including the rights, if any, to
receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the
holders thereof to receive shares of Common Stock in exchange
therefor. Any shares of Series A Preferred Stock so converted
shall be retired and cancelled and shall not be reissued, and
the Corporation (without the need for stockholder action) may
from time to time take such appropriate action as may be
necessary to reduce the authorized number of shares of the
Series A Preferred Stock accordingly.
(iv) The Corporation shall pay any and all issue and
other taxes that may be payable in respect of any issuance or
delivery of shares of Common Stock upon conversion of shares
of Series A Preferred Stock pursuant to this Section 6. The
Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in
the issuance and delivery of shares of Common Stock in a name
other than that in which the shares of Series A Preferred
Stock so converted were registered, and no such issuance or
delivery shall be made unless and until the person or entity
requesting such issuance has paid to the Corporation the
amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid.
(d) Adjustments to Conversion Price for Diluting Issues.
(i) Special Definitions. For purposes of this
Subsection 6(d), the following definitions shall apply:
(A) "Additional Shares of Common Stock"
shall mean all shares of Common Stock issued (or,
pursuant to Subsection 6(d)(iii) below, deemed to be
issued) by the Corporation after the Original Issue
Date, other than:
(I) shares of Common Stock issued
or issuable as a dividend or other
distribution on Series A Preferred Stock;
(II) shares of Common Stock issued
or issuable by reason of a dividend or other
distribution on shares of Common Stock that
is covered by Subsection 6(e) or 6(f) below;
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(III) up to 1,500,000 shares of
Common Stock (and/or Options exercisable
therefor) (subject to appropriate adjustment
for stock splits, stock dividends,
combinations and other similar
recapitalizations affecting such shares)
issued or issuable pursuant to the
Management Stock Option Plan;
(IV) shares of Common Stock issued
or issuable upon exercise of the Warrants;
and
(V) shares of Common Stock issued
or issuable upon exercise of the warrants
listed on Schedule 3.5(b) attached to the
Purchase Agreement.
(B) "Convertible Securities" shall mean any
evidences of indebtedness, shares or other securities
directly or indirectly convertible into or
exchangeable for Common Stock.
(C) "Options" shall mean rights, options or
warrants to subscribe for, purchase or otherwise
acquire Common Stock or Convertible Securities (other
than as provided in Subsection 6(d)(i)(A)(III) above.
(D) "Original Issue Date" shall mean the
date on which a share of Series A Preferred Stock was
first issued.
(ii) No Adjustment of Conversion Price. No adjustment
in the number of shares of Common Stock into which the Series
A Preferred Stock is convertible shall be made (a) unless the
consideration per share (determined pursuant to Subsection
6(d)(v)) for an Additional Share of Common Stock issued or
deemed to be issued by the Corporation is less than the
applicable Conversion Price in effect on the date of, and
immediately prior to, the issue of such Additional Shares, or
(b) if prior to or within 60 days subsequent to such issuance,
the Corporation receives written notice from the holders of at
least 66 2/3% of the then outstanding shares of Series A
Preferred Stock, agreeing that no such adjustment shall be
made as the result of the issuance of Additional Shares of
Common Stock.
(iii) Issue of Securities Deemed Issue of Additional
Shares of Common Stock. If the Corporation at any time or from
time to time after the Original Issue Date shall issue any
Options or Convertible Securities or shall fix a record date
for the determination of holders of any class of securities
entitled to receive any such Options or Convertible
Securities, then the maximum number of shares of Common Stock
(as set forth in the instrument relating thereto without
regard to any provision contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issue or, in case such a
record date shall have been fixed, as of the close of business
on such record date, provided that Additional Shares of Common
Stock shall not be deemed to have been issued unless the
consideration per share (determined pursuant to Subsection
6(d)(v) hereof) of such Additional Shares of Common Stock
would be less than the applicable Conversion Price in effect
on the
<PAGE>
date of and immediately prior to such issue, or such record
date, as the case may be, and provided further that in any
such case in which Additional Shares of Common Stock are
deemed to be issued:
(A) No further adjustment in the Conversion
Price shall be made upon the subsequent issue of
Convertible Securities or shares of Common Stock upon
the exercise of such Options or conversion or
exchange of such Convertible Securities;
(B) If such Options or Convertible
Securities by their terms provide, with the passage
of time or otherwise, for any increase or decrease in
the consideration payable to the Corporation, upon
the exercise, conversion or exchange thereof, the
Conversion Price computed upon the original issue
thereof (or upon the occurrence of a record date with
respect thereto), and any subsequent adjustments
based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under
such Convertible Securities;
(C) Upon the expiration or termination of
any unexercised Option, the Conversion Price shall
not be readjusted, but the Additional Shares of
Common Stock deemed issued as the result of the
original issue of such Option shall not be deemed
issued for the purposes of any subsequent adjustment
of the Conversion Price;
(D) In the event of any change in the number
of shares of Common Stock issuable upon the exercise,
conversion or exchange of any Option or Convertible
Security, including, but not limited to, a change
resulting from the anti-dilution provisions thereof,
the Conversion Price then in effect shall forthwith
be readjusted to such Conversion Price as would have
obtained had the adjustment which was made upon the
issuance of such Option or Convertible Security not
exercised or converted prior to such change been made
upon the basis of such change; and
(E) No readjustment pursuant to clause (B)
or (D) above shall have the effect of increasing the
Conversion Price to an amount which exceeds the lower
of (i) the Conversion Price on the original
adjustment date, or (ii) the Conversion Price that
would have resulted from any issuances of Additional
Shares of Common Stock between the original
adjustment date and such readjustment date.
In the event the Corporation, after the Original
Issue Date, amends any Options or Convertible Securities
(whether such Options or Convertible Securities were
outstanding on the Original Issue Date or were issued after
the Original Issue Date) to increase the number of shares
issuable thereunder or decrease the consideration to be paid
upon exercise or conversion thereof, then such Options or
Convertible Securities, as so amended, shall be deemed to have
been issued after the Original Issue Date and the provisions
of this Subsection 6(d)(iii) shall apply.
(iv) Adjustment of Conversion Price Upon Issuance of
Additional Shares of Common Stock. In the event the
Corporation shall at any time after the Original Issue Date
issue Additional Shares of Common Stock (including Additional
Shares of Common Stock deemed to be issued pursuant to
Subsection 6(d)(iii), but excluding shares issued as a stock
split
<PAGE>
or combination as provided in Subsection 6(e) or upon a
dividend or distribution as provided in Subsection 6(f)),
without consideration or for a consideration per share less
than the applicable Conversion Price in effect on the date of
and immediately prior to such issue, then and in such event,
such Conversion Price shall be reduced, concurrently with such
issue, to a price (calculated to the nearest cent) determined
by multiplying such Conversion Price by a fraction, (A) the
numerator of which shall be (1) the number of shares of Common
Stock outstanding immediately prior to such issue plus (2) the
number of shares of Common Stock which the aggregate
consideration received or to be received by the Corporation
for the total number of Additional Shares of Common Stock so
issued would purchase at such Conversion Price; and (B) the
denominator of which shall be the number of shares of Common
Stock outstanding immediately prior to such issue plus the
number of such Additional Shares of Common Stock so issued;
provided that, (i) for the purpose of this Subsection
6(d)(iv), all shares of Common Stock issuable upon exercise or
conversion of Options or Convertible Securities outstanding
immediately prior to such issue shall be deemed to be
outstanding, and (ii) for the purpose of this Subsection
6(d)(iv), the number of shares of Common Stock deemed issuable
upon conversion of such outstanding Convertible Securities
shall not give effect to any adjustments to the conversion
price or conversion rate of such Convertible Securities
resulting from the issuance of Additional Shares of Common
Stock that is the subject of this calculation.
Notwithstanding the provisions of this Section
6(d)(iv), in the event that a holder or holders of Series A
Preferred Stock convert any shares of Series A Preferred Stock
into shares of Common Stock pursuant to this Section 6 prior
to the Determination Date, upon the determination that a
number of Warrant Shares will be issuable upon exercise of the
Warrants (as set forth in Section 2.1 of the Warrants), the
Corporation shall issue on a pro rata basis to the holders of
Common Stock issued upon conversion of the Series A Preferred
Stock prior to the Determination Date additional shares of
Common Stock such that on the Determination Date the sum of
(i) the number of those additional shares of Common Stock,
(ii) the number of outstanding shares of Common Stock that
were converted from Series A Preferred Stock held by such
holders immediately prior to the Determination Date, (iii) the
number of shares of Common Stock into which any outstanding
shares of Series A Preferred Stock not yet converted are then
convertible, and (iv) the number of additional shares, if any,
issuable pursuant to the immediately succeeding paragraph,
equals 32.7% of all outstanding common equity of the
Corporation on a fully diluted basis as of the Closing Date
(as defined in the Purchase Agreement). For purposes of this
paragraph, "pro rata basis" for a particular holder shall mean
such holder's percent ownership of the securities described in
clause (ii) of the immediately preceding sentence. For the
avoidance of doubt, outstanding common equity of the
Corporation shall include the additional shares issued
pursuant to this paragraph, the shares subject to the Warrants
and the number of shares equal to the difference between the
1,500,000 options authorized under the Management Stock Option
Plan and the number of options actually outstanding thereunder
on the Determination Date. Schedule 1 sets forth the
calculations of the aggregate number of shares of Common Stock
into which the Series A Preferred Stock are convertible based
on the adjustments pursuant to this paragraph.
Notwithstanding the provisions of this Section
6(d)(iv), in the event that a holder or holders of Series A
Preferred Stock convert any shares of Series A Preferred Stock
into shares of Common Stock pursuant to this Section 6 on or
after the Determination Date, on such conversion
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date the Corporation shall issue on a pro rata basis to the
holders of the Series A Preferred Stock shares of Common Stock
such that on such conversion date the sum of (i) the number of
those shares of Common Stock, (ii) the number of shares of
Common Stock into which any outstanding shares of Series A
Preferred Stock not yet converted are convertible, (iii) the
number of outstanding shares of Common Stock that were
previously converted from Series A Preferred Stock, and (iv)
the number of additional shares, if any, issued pursuant to
the immediately preceding paragraph, equals 32.7% of all
outstanding common equity of the Corporation on a fully
diluted basis as of the Closing Date (as defined in the
Purchase Agreement). For purposes of this paragraph, "pro rata
basis" for a particular holder shall mean such holder's
percent ownership of the securities described in clause (ii)
of the immediately preceding sentence. For the avoidance of
doubt, outstanding common equity of the Corporation shall
include the shares issued pursuant to this paragraph, the
shares subject to the Warrants and the number of shares equal
to the difference between the 1,500,000 options authorized
under the Management Stock Option Plan and the number of
options actually outstanding thereunder on the Determination
Date. Schedule 1 sets forth the calculations of the aggregate
number of shares of Common Stock into which the Series A
Preferred Stock are convertible based on the adjustments
pursuant to this paragraph.
Notwithstanding the provisions of this Section
6(d)(iv), in the event that the Corporation issues additional
shares of Common Stock or other equity securities of the
Corporation to any of those certain holders of Common Stock
who converted their bridge notes from the Corporation into
such Common Stock as an adjustment to the original number of
shares of Common Stock issued pursuant to such conversion,
then the Corporation shall issue on a pro rata basis to the
holders of (i) the outstanding shares of Series A Preferred
Stock and (ii) any Common Stock that was already converted
from Series A Preferred Stock, an additional number of shares
of Series A Preferred Stock and/or Common Stock, as the case
may be, such that such holders own in the aggregate 32.7% of
all outstanding common equity of the Corporation as of the
Closing Date (as defined in the Purchase Agreement). For
purposes of this paragraph, "pro rata basis" for a particular
holder shall mean such holder's percent ownership of the
securities described in clause (i) or (ii) of the immediately
preceding sentence, as the case may be. For the avoidance of
doubt, outstanding common equity of the Corporation shall
include the additional shares issued pursuant to this
paragraph, the number of shares equal to the difference
between the 1,500,000 options authorized under the Management
Stock Option Plan and the number of options actually
outstanding thereunder.
Notwithstanding the provisions of this Subsection
6(d)(iv), in the event the Corporation makes a Dilutive
Issuance (as defined below), the adjustment to the Conversion
Price of shares of Series A Preferred Stock provided for in
this Subsection 6(d)(iv) as a result of such Dilutive Issuance
shall not be made with respect to shares of Series A Preferred
Stock held by a person or entity who was given the opportunity
to purchase its Pro Rata Portion (as defined below) of such
Dilutive Issuance (whether pursuant to a right of first
refusal or otherwise), and who failed to purchase its Pro Rata
Portion of such Dilutive Issuance. Each such holder shall be
deemed to have waived (i) the reduction in the Conversion
Price of such holder's shares of Series A Preferred Stock that
would have otherwise resulted pursuant to this Subsection
6(d)(iv) from such Dilutive Issuance, and (ii) the right to
receive, upon conversion of its Series A Preferred Stock
pursuant to this Section 6, any additional shares of Common
Stock that would have been
<PAGE>
issuable as a result of such reduction in the Conversion
Price; and such waiver shall be binding upon any transferee of
the shares of Series A Preferred Stock held by such holder. A
"Dilutive Issuance" shall mean any issuance of Additional
Shares of Common Stock that results (or would result, except
for this paragraph) in a reduction in the Conversion Price
pursuant to this Subsection 6(d)(iv). A holder's "Pro Rata
Portion" of a Dilutive Issuance shall mean the number of
Additional Shares of Common Stock issued in such Dilutive
Issuance, multiplied by a fraction, the numerator of which is
the number of shares of Common Stock issuable upon conversion
of all shares of Series A Preferred Stock then held by such
holder, and the denominator of which is the aggregate number
of shares of Common Stock issuable upon conversion of all
shares of Series A Preferred Stock then outstanding. For
purposes of this paragraph, the portion of a Dilutive Issuance
purchased by a holder of Series A Preferred Stock shall be
deemed to include any portion of such Dilutive Issuance
purchased by an "affiliate" (as defined in Rule 144 under the
Securities Act of 1933, as amended) of such holder.
All certificates representing shares of Series A
Preferred Stock shall have affixed thereto a legend
substantially in the following form:
"The shares represented by this certificate are
convertible into shares of common stock at a rate
which may vary among different stockholders of the
Corporation. Information concerning the conversion
rate applicable to the shares represented by this
certificate may be obtained from the Secretary of the
Corporation."
(v) Determination of Consideration. For purposes of
this Subsection 6(d), the consideration received by the
Corporation for the issue of any Additional Shares of Common
Stock shall be computed as follows:
(A) Cash and Property: Such consideration
shall:
(I) insofar as it consists of cash,
be computed at the aggregate of cash
received by the Corporation, excluding
amounts paid or payable for accrued
interest;
(II) insofar as it consists of
property other than cash, be computed at the
fair market value thereof at the time of
such issue, as determined in good faith by
the Board of Directors; and
(III) in the event Additional
Shares of Common Stock are issued together
with other shares or securities or other
assets of the Corporation for consideration
which covers both, be the proportion of such
consideration so received, computed as
provided in clauses (I) and (II) above, as
determined in good faith by the Board of
Directors.
(B) Options and Convertible Securities. The
consideration per share received by the Corporation
for Additional Shares of Common Stock deemed to have
been issued pursuant to Subsection 6(d)(iii),
relating to Options and Convertible Securities, shall
be determined by dividing
<PAGE>
(x) the total amount, if any,
received or receivable by the Corporation as
consideration for the issue of such Options
or Convertible Securities, plus the minimum
aggregate amount of additional consideration
(as set forth in the instruments relating
thereto, without regard to any provision
contained therein for a subsequent
adjustment of such consideration) payable to
the Corporation upon the exercise of such
Options or the conversion or exchange of
such Convertible Securities, or in the case
of Options for Convertible Securities, the
exercise of such Options for Convertible
Securities and the conversion or exchange of
such Convertible Securities, by
(y) the maximum number of shares of
Common Stock (as set forth in the
instruments relating thereto, without regard
to any provision contained therein for a
subsequent adjustment of such number)
issuable upon the exercise of such Options
or the conversion or exchange of such
Convertible Securities.
(vi) Multiple Closing Dates. In the event the
Corporation shall issue on more than one date Additional
Shares of Common Stock which are comprised of shares of the
same series or class of Convertible Securities, and such
issuance dates occur within a period of no more than 120 days,
then, upon the final such issuance, the Conversion Price shall
be adjusted to give effect to all such issuances as if they
occurred on the date of the final such issuance (and without
giving effect to any adjustments as a result of such prior
issuances within such period).
(e) Adjustment for Stock Splits and Combinations. If the
Corporation shall at any time or from time to time after the Original
Issue Date effect a subdivision of the outstanding Common Stock, the
Conversion Price then in effect immediately before that subdivision
shall be proportionately decreased. If the Corporation shall at any
time or from time to time after the Original Issue Date combine the
outstanding shares of Common Stock, the Conversion Price then in effect
immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close
of business on the date the subdivision or combination becomes
effective.
(f) Adjustment for Certain Dividends and Distributions. In the
event the Corporation at any time, or from time to time after the
Original Issue Date shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of Common
Stock, then and in each such event the Conversion Price for the Series
A Preferred Stock then in effect shall be decreased as of the time of
such issuance or, in the event such a record date shall have been
fixed, as of the close of business on such record date, by multiplying
the Conversion Price for the Series A Preferred Stock then in effect by
a fraction:
(1) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding immediately
prior to the time of such issuance or the close of business on
such record date, and
(2) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding
immediately prior to the time of such
<PAGE>
issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such
dividend or distribution;
provided, however, if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Conversion Price for the Series A
Preferred Stock shall be recomputed accordingly as of the close of
business on such record date and thereafter the Conversion Price for
the Series A Preferred Stock shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or
distributions; and provided further, however, that no such adjustment
shall be made if the holders of Series A Preferred Stock simultaneously
receive a dividend or other distribution of shares of Common Stock in a
number equal to the number of shares of Common Stock as they would have
received if all outstanding shares of Series A Preferred Stock had been
converted into Common Stock on the date of such event.
(g) Adjustments for Other Dividends and Distributions. In the
event the Corporation at any time or from time to time after the
Original Issue Date for the Series A Preferred Stock shall make or
issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Corporation other than shares of Common Stock, then
and in each such event provision shall be made so that the holders of
the Series A Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon,
the amount of securities of the Corporation that they would have
received had the Series A Preferred Stock been converted into Common
Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the conversion
date, retained such securities receivable by them as aforesaid during
such period, giving application to all adjustments called for during
such period under this paragraph with respect to the rights of the
holders of the Series A Preferred Stock; and provided further, however,
that no such adjustment shall be made if the holders of Series A
Preferred Stock simultaneously receive a dividend or other distribution
of such securities in an amount equal to the amount of such securities
as they would have received if all outstanding shares of Series A
Preferred Stock had been converted into Common Stock on the date of
such event.
(h) Adjustment for Reclassification, Exchange, or
Substitution. If the Common Stock issuable upon the conversion of the
Series A Preferred Stock shall be changed into the same or a different
number of shares of any class or classes of stock, whether by capital
reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or stock dividend provided for
above, or a reorganization, merger, consolidation, or sale of assets
provided for below), then and in each such event the holder of each
such share of Series A Preferred Stock shall have the right thereafter
to convert such share into the kind and amount of shares of stock and
other securities and property receivable, upon such reorganization,
reclassification, or other change, by holders of the number of shares
of Common Stock into which such shares of Series A Preferred Stock
might have been converted immediately prior to such reorganization,
reclassification, or change, all subject to further adjustment as
provided herein.
<PAGE>
(i) Adjustment for Merger or Reorganization, etc. In case of
any consolidation or merger of the Corporation with or into another
corporation or the sale of all or substantially all of the assets of
the Corporation to another corporation, each share of Series A
Preferred Stock shall thereafter be convertible (or shall be converted
into a security which shall be convertible) into the kind and amount of
shares of stock or other securities or property to which a holder of
the number of shares of Common Stock of the Corporation deliverable
upon conversion of such Series A Preferred Stock would have been
entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board of
Directors) shall be made in the application of the provisions in this
Section 6 set forth with respect to the rights and interest thereafter
of the holders of the Series A Preferred Stock, to the end that the
provisions set forth in this Section 6 (including provisions with
respect to changes in and other adjustments of the Conversion Price)
shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter
deliverable upon the conversion of the Series A Preferred Stock.
(j) No Impairment. The Corporation will not, by amendment of
its Articles of Incorporation or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or
performed hereunder by the Corporation, but will at all times in good
faith assist in the carrying out of all the provisions of this Section
6 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the holders of
the Series A Preferred Stock against impairment.
(k) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price pursuant to this
Section 6, the Corporation at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Series A Preferred Stock a certificate
setting forth such adjustment or readjustment and identifying the
shares of Series A Preferred Stock to which it applies and showing in
detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the reasonable written request at any time
of any holder of Series A Preferred Stock, furnish or cause to be
furnished to such holder a similar certificate setting forth (i) such
adjustments and readjustments, (ii) the Conversion Price then in effect
with respect to such holder's shares, and (iii) the number of shares of
Common Stock and the amount, if any, of other property which then would
be received upon the conversion of such holder's shares of Series A
Preferred Stock.
(l) Notice of Record Date. In the event:
(i) that the Corporation declares a dividend (or
any other distribution) on its Common Stock
payable in Common Stock or other securities
of the Corporation;
(ii) that the Corporation subdivides or combines
its outstanding shares of Common Stock;
<PAGE>
(iii) of any reclassification of the Common Stock
of the Corporation (other than a subdivision
or combination of its outstanding shares of
Common Stock or a stock dividend or stock
distribution thereon), or of any
consolidation or merger of the Corporation
into or with another corporation, or of the
sale of all or substantially all of the
assets of the Corporation; or
(iv) of the involuntary or voluntary dissolution,
liquidation or winding up of the
Corporation;
then the Corporation shall cause to be filed at its principal office or
at the office of the transfer agent of the Series A Preferred Stock,
and shall cause to be mailed to the holders of the Series A Preferred
Stock at their last addresses as shown on the records of the
Corporation or such transfer agent, at least ten days prior to the date
specified in (A) below or twenty days before the date specified in (B)
below, a notice stating
(A) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be
taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution,
subdivision or combination are to be determined, or
(B) the date on which such reclassification,
consolidation, merger, sale, dissolution, liquidation or
winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution or
winding up.
7. Mandatory Conversion.
(a) Upon the closing (the "Mandatory Conversion Date") of the
sale of shares of Common Stock in a firm commitment underwritten public
offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, all outstanding shares of Series A
Preferred Stock shall automatically be converted into shares of Common
Stock, (i) in the case of such an offering at a price per share equal
to or exceeding $7.00 (subject to appropriate adjustment for stock
splits, stock dividends, combinations and other similar
recapitalizations affecting such shares), at the then effective
conversion rate, and (ii) in the case of such an offering at a price
per share less than $7.00 (subject to appropriate adjustment for stock
splits, stock dividends, combinations and other similar
recapitalizations affecting such shares), at the then effective
conversion rate (the "Base Number of Shares"), provided that in such
case the Corporation shall also issue to the holders of the Series A
Preferred Stock a number of additional shares of Common Stock equal to
the quotient obtained by dividing the difference between (A) $7.00
multiplied by the Base Number of Shares and (B) the offering price per
share multiplied by the sum of the Base Number of Shares and the number
of Warrant Shares (provided that if the Mandatory Conversion Date is
prior to the Determination Date, the number of Warrant Shares shall be
deemed to be zero), by the offering price per share. Attached hereto as
Schedule 2 are examples of the calculation of additional shares of
Common Stock
<PAGE>
described in clause (ii) of the immediately preceding sentence, which
examples assume that the Mandatory Conversion Date is prior to the
Determination Date. Thereafter, all references herein to Series A
Preferred Stock shall be deleted and of no further force or effect.
(b) All holders of record of shares of Series A Preferred
Stock, shall be given written notice of the Mandatory Conversion Date,
and the place designated for mandatory conversion of all such shares of
Series A Preferred Stock, pursuant to this Section 7. Such notice need
not be given in advance of the occurrence of a Mandatory Conversion
Date. Such notice shall be sent by first class or registered mail,
postage prepaid, to each record holder of Series A Preferred Stock, at
such holder's address last shown on the records of the transfer agent
(or the records of the Corporation, if it serves as its own transfer
agent). Upon receipt of such notice, each holder of shares of Series A
Preferred Stock, shall surrender his or its certificate or certificates
for all such shares to the Corporation at the place designated in such
notice, and shall thereafter receive certificates for the number of
shares of Common Stock to which such holder is entitled pursuant to
this Section 7. On the Mandatory Conversion Date, all rights with
respect to the Series A Preferred Stock, so converted, including the
rights, if any, to receive notices and vote (other than as a holder of
Common Stock) will terminate, except only the rights of the holders
thereof, upon surrender of their certificate or certificates therefor,
to receive certificates for the number of shares of Common Stock into
which such Series A Preferred Stock has been converted, and payment of
any declared but unpaid dividends thereon. If so required by the
Corporation, certificates surrendered for conversion shall be endorsed
or accompanied by written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the registered
holder or by his or its attorney duly authorized in writing. As soon as
practicable after the Mandatory Conversion Date and the surrender of
the certificate or certificates for Series A Preferred Stock, the
Corporation shall cause to be issued and delivered to such holder, or
on his or its written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion in
accordance with the provisions hereof and cash as provided in
Subsection 6(b) in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion.
(c) All certificates evidencing shares of Series A Preferred
Stock, which are required to be surrendered for conversion in
accordance with the provisions hereof shall, from and after the
Mandatory Conversion Date, be deemed to have been retired and cancelled
and the shares of Series A Preferred Stock represented thereby
converted into Common Stock for all purposes, notwithstanding the
failure of the holder or holders thereof to surrender such certificates
on or prior to such date.
(d) Notwithstanding anything in this Section 7 to the
contrary, if the Majority Holders (as defined in the Stockholders'
Agreement) have voting control of the board of directors of the
Corporation pursuant to the last sentence of Section 3.1(b) of the
Stockholders' Agreement, then no additional shares of Common Stock
shall be issued pursuant to clause (ii) of Section 7(a).
<PAGE>
8. Redemption.
(a) The Corporation will, subject to the conditions set forth
below and in Section 8.2 of the Purchase Agreement, upon a Liquidity
Event and the receipt of not less than 15 days prior written notice
from a holder of shares of Series A Preferred Stock (the "Redemption
Election"), redeem from such holder, at a price equal to the Purchase
Price (subject to appropriate adjustment only for stock splits, stock
dividends, combinations and other similar recapitalizations affecting
such shares), plus any accrued but unpaid dividends thereon (as
applicable, the "Redemption Price"), the number of shares of Series A
Preferred Stock held and designated in such written notice by such
holder. The Corporation shall provide at least 30 days prior written
notice of a Liquidity Event described in clauses (ii) through (v) of
the definition thereof, by first class or registered mail, postage
prepaid, to each holder of record of Series A Preferred Stock at the
address for such holder last shown on the records of the transfer agent
therefor (or the records of the Corporation, if it serves as its own
transfer agent).
(b) If the funds of the Corporation legally available for
redemption of Series A Preferred Stock on the date of any applicable
Liquidity Event are insufficient to redeem the number of shares of
applicable Series A Preferred Stock required under this Section 8 to be
redeemed on such date, those funds which are legally available will be
used to redeem the maximum possible number of such shares of Series A
Preferred Stock ratably on the basis of the Redemption Price, as the
case may be, of such shares of Series A Preferred Stock which would be
redeemed on such date if the funds of the Corporation legally available
therefor had been sufficient to redeem all shares of Series A Preferred
Stock required to be redeemed on such date. At any time thereafter when
additional funds of the Corporation become legally available for the
redemption of Series A Preferred Stock, such funds will be used, at the
end of the next succeeding fiscal quarter, to redeem, to the extent of
the available funds, the balance of the shares which the Corporation
was theretofore obligated to redeem.
(c) Unless there shall have been a default in payment of a
Redemption Price, on the date of any applicable Liquidity Event all
rights of each holder of shares of Series A Preferred Stock whose
shares were redeemed as a stockholder of the Corporation by reason of
the ownership of such shares and pursuant to a Redemption Election will
cease, except the right to receive such Redemption Price for such
shares, without interest, upon presentation and surrender of the
certificate representing such shares, and such shares will not from and
after such Liquidity Event be deemed to be outstanding.
(d) Any Series A Preferred Stock redeemed pursuant to this
Section 8 will be cancelled and will not under any circumstances be
reissued, sold or transferred.
9. Negative Covenants. The Corporation shall not amend, alter or repeal
the preferences, special rights or other powers of the Series A Preferred Stock
so as to affect adversely the Series A Preferred Stock, without the written
consent or affirmative vote of the holders of at least 50.1% of the then
outstanding shares of Series A Preferred Stock, given in writing or by vote at a
meeting, consenting or voting (as the case may be) separately as a class;
provided that the Corporation shall not extend the scheduled date of any
required repurchase or redemption or reduce the repurchase or redemption price
payable thereon or change any conversion right without the written consent or
affirmative vote of each holder of the then outstanding shares of Series A
Preferred Stock. For this purpose, without limiting the generality
<PAGE>
of the foregoing, the authorization of any shares of capital stock with
preference or priority over or on a parity with the Series A Preferred Stock as
to the right to receive either dividends or amounts distributable upon
liquidation, dissolution or winding up of the Corporation shall be deemed to
affect adversely the Series A Preferred Stock.
10. Waiver. Any of the rights of the holders of Series A Preferred
Stock set forth herein may be waived by the affirmative vote of the holders of
at least 50.1% of the shares of Series A Preferred Stock then outstanding.
11. Cancellation Under Certain Circumstances. At such time as all
outstanding shares of Series A Preferred Stock have been converted or redeemed,
(i) any theretofore authorized but unissued shares of such series shall also be
canceled and shall not be reissuable by the Corporation, (ii) this Statement of
Designation shall be deemed amended to eliminate all authorized Series A
Preferred Stock, as the case may be, and the terms and provisions thereof, and
(iii) the Board of Directors and officers of the Corporation are authorized to
take such action and execute and file such instruments as may be necessary or
appropriate to effect such amendment.
[The remainder of this page is intentionally left blank]
<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
BUFFALO WILD WINGS, INC.
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
amendment to the Articles of Incorporation of Buffalo Wild Wings, Inc., amending
and restating Article 3.1 in its entirety, as set forth below, was duly adopted
at a meeting of the shareholders of the corporation on May 11, 2001:
"ARTICLE 3 - CAPITAL STOCK
3.1) The aggregate number of shares the corporation has
authority to issue shall be 110,000,000 shares, which shall have a par
value of $.01 per share solely for the purpose of a statute or
regulation imposing a tax or fee based upon the capitalization of the
corporation, and which shall consist of 78,000,000 shares of Common
Stock, 4,000,000 shares of Series A Preferred Stock and 28,000,000
shares of Undesignated Stock. The Board of Directors of the corporation
is authorized to establish from the Undesignated Stock, by resolution
adopted and filed in the manner provided by law, one or more classes or
series of shares, to designate each such class or series (which may
include but is not limited to designation as additional Common Stock),
and to fix the relative rights and preferences of each such class or
series."
The undersigned swears that the foregoing is true and accurate and that
the undersigned has the authority to sign this document on behalf of the
corporation.
Dated: May 14, 2001
/s/ Sally J. Smith
-----------------------------------------------------
Sally J. Smith, President and Chief Executive Officer
<PAGE>
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
BUFFALO WILD WINGS, INC.
Pursuant to the provisions of Minnesota Statutes, Sections 302A.402,
Subd. 3, and 302A.139, the following amendment to the Articles of Incorporation
of Buffalo Wild Wings, Inc. was duly adopted by the Executive Committee of the
Board of Directors on September 9, 2003:
1. Effective as of September, 9, 2003, Section 3.1 of Article 3 of the
Articles of Incorporation is hereby amended and restated in its entirety:
"3.1) Authorized Shares. The aggregate number of shares the corporation
has authority to issue shall be 25,200,000 shares, which shall have a
par value of $0.01 per share solely for the purpose of a statute or
regulation imposing a tax of fee based upon the capitalization of the
corporation, and which shall consist of 15,600,000 Common Shares
(hereinafter referred to as "Common Stock"), 4,000,000 shares of Series
A Preferred Stock and 5,600,000 shares of Undesignated Stock. The Board
of Directors of the corporation is authorized to establish from the
Undesignated Stock, by resolution adopted and filed in the manner
provided by law, one or more classes or series of shares, to designate
each such class or series (which may include but is not limited to
designation as additional Common Stock), and to fix the relative rights
and preferences of each such class or series."
2. On the effective date of this Amendment, every five (5) shares of
Common Stock of Buffalo Wild Wings, Inc. outstanding shall be converted into and
become one (1) share of Common Stock.
The undersigned swears that the foregoing is true and accurate and that
the undersigned has the authority to sign this document on behalf of the
corporation.
Dated: September 9, 2003
/s/ James M. Schmidt
------------------------------------------
James M. Schmidt, Executive Vice President
and General Counsel
<PAGE>
ARTICLES OF CORRECTION
OF
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
BUFFALO WILD WINGS, INC.
Pursuant to the provisions of Minnesota Statutes, Section 5.16, the
Articles of Amendment of the Articles of Incorporation of Buffalo Wild Wings,
Inc. filed with the Minnesota Secretary of State on September 9, 2003, which
omitted to provide a statement as required by the Minnesota Statutes, are hereby
corrected to add the following statement:
3. This Amendment will not adversely affect the rights or
preferences of the holders of outstanding shares of any class or series
and will not result in the percentage of authorized shares of any class
or series that remains unissued after the stock split set forth above
exceeding the percentage of authorized shares of that class or series
that were unissued before such stock split.
The undersigned swears that the foregoing is true and accurate and that
the undersigned has the authority to sign this document on behalf of the
corporation.
Dated: September 10, 2003
/s/ James M. Schmidt
----------------------------------------------
James M. Schmidt, Executive Vice President and
General Counsel