EXHIBIT 2.1
AMENDED AND RESTATED
PLAN OF MERGER
THIS AMENDED AND RESTATED PLAN OF MERGER (the "Plan") is dated as of
March 12, 2002, and is by and between DAKOTA GROWERS PASTA COMPANY (the
"North Dakota Cooperative") and DAKOTA GROWERS PASTA RESTRUCTURING
COOPERATIVE ("Colorado Cooperative"), each of which may be referred to herein
as a "Constituent Cooperative" and both of which may be collectively referred
to herein as the "Constituent Cooperatives."
WHEREAS, the North Dakota Cooperative is a cooperative association
organized under Section 10-15 of the North Dakota Cooperative Association Act
(the "North Dakota Act"); and Colorado Cooperative is a cooperative association
organized under Title 7, Article 56 of the Colorado Revised Statutes, as amended
(the "Colorado Cooperative Act"), and is a wholly owned subsidiary of the North
Dakota Cooperative. The North Dakota Act and the Colorado Cooperative Act may be
referred to herein collectively as the "Acts."
WHEREAS, the respective Boards of Directors of the North Dakota
Cooperative and Colorado Cooperative and the respective members of the North
Dakota Cooperative and Colorado Cooperative each has approved and adopted this
Plan and the transactions contemplated hereby in the manner required by their
respective Articles of Incorporation and Bylaws, and the appropriate sections of
the Acts.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements of the parties contained herein, the parties hereto
agree as follows:
SECTION 1. THE MERGER. At the Effective Time (as defined in Section 8),
the North Dakota Cooperative and Colorado Cooperative shall combine through
merger (the "Dakota Merger") in accordance with the applicable provisions of the
Acts, and Colorado Cooperative shall be the surviving cooperative and shall
continue to exist as a Colorado cooperative association by virtue of, and shall
be governed by, the Colorado Cooperative Act.
SECTION 2. ARTICLES OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the Dakota
Merger, the articles of merger (the "Articles of Merger") and a statement of
merger ("Statement of Merger") shall be executed in compliance with Section
10-15 of the North Dakota Act and Title 7, Article 56 of the Colorado
Cooperative Act, respectively. The Articles of Merger shall be filed with the
Secretary of State of the State of North Dakota and the Statement of Merger
shall be filed with the Secretary of State of the State of Colorado, or as
otherwise required by the Acts.
SECTION 3. EFFECT OF MERGER. From and after the Effective Time, without
any further action by the Constituent Cooperatives or any of their respective
members: (a) Colorado Cooperative, as the surviving cooperative in the Dakota
Merger, shall have all of the rights, privileges, immunities and powers, and
shall be subject to all the duties and liabilities, of a cooperative organized
under the Colorado Cooperative Act; (b) Colorado Cooperative, as the surviving
cooperative in the Dakota Merger, shall possess all of the rights, privileges,
immunities and franchises, of a public as well as a private nature, of each
Constituent Cooperative, and all property, real, personal and mixed, and all
debts due on whatever account, including all choices in action, and each and
every other interest of or belonging to or due to each Constituent Cooperative,
shall be deemed to be and hereby is vested in Colorado Cooperative, without
further act or deed, and the title to any property, or any interest therein,
vested in either Constituent Cooperative, shall not revert or be in any way
impaired by reason of the Dakota Merger; (c) Colorado Cooperative shall be
responsible and liable for all of the liabilities and obligations of each
Constituent Cooperative, and any claim existing or action or proceeding pending
by or against one of the Constituent Cooperatives may be prosecuted as if the
Dakota Merger had not taken place or Colorado Cooperative may be substituted in
its place; (d) neither the rights of creditors nor any liens upon the property
of either of the Constituent Cooperatives shall be impaired by the Dakota
Merger; and (e) the Dakota Merger shall have any other effect set forth in the
Acts and the Transaction Agreement dated January 30 between the North Dakota
Cooperative, Colorado Cooperative, Dakota Growers Corporation, a Colorado
corporation, and Dakota Growers Restructuring Company, Inc., a North Dakota
corporation (the "Transaction Agreement"), in each case with the effect and to
the extent provided in the applicable provisions of the Acts.
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SECTION 4. ARTICLES OF INCORPORATION AND BYLAWS. From and after the
Effective Time, pursuant to the Articles of Merger and without any further
action by the Constituent Cooperatives or any of their respective members, the
Articles of Incorporation of Colorado Cooperative in effect immediately prior to
the Effective Time shall be the Articles of Incorporation of Colorado
Cooperative, as the surviving cooperative in the Dakota Merger (the "Surviving
Entity Articles"). From and after the Effective Time, without any further action
by the Constituent Cooperatives or any of their respective members, the Bylaws
of Colorado Cooperative in effect immediately prior to the Effective Time shall
be the Bylaws of Colorado Cooperative, as the surviving cooperative in the
Dakota Merger (the "Surviving Entity Bylaws"). A copy of the Surviving Entity
Articles of Incorporation and Bylaws was provided to the respective members of
each Constituent Cooperative in connection with their consideration of the
Dakota Merger.
SECTION 5. BOARD OF DIRECTORS AND OFFICERS. From and after the
Effective Time, without any further action by the Constituent Cooperatives or
any of their respective members, each person serving as a director or an officer
of the North Dakota Cooperative immediately prior to the Effective Time shall
become a director or an officer of Colorado Cooperative, as the surviving
cooperative in the Dakota Merger, (in the case of officers, holding the same
office in Colorado Cooperative as they held in the North Dakota Cooperative
immediately prior to the Effective Time) to serve in accordance with the
Surviving Entity Bylaws. The initial directors and officers of Colorado
Cooperative prior to the effective date shall resign their positions as
directors and officers of Colorado Cooperative as of the effective date.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION AND CONTINUATION OF
CAPITAL STOCK, NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS. At
the Effective Time, the manner and basis of exchanging and continuing the shares
of capital stock, non-stock equity interests, units of equity participation,
non-voting units of equity participation, patronage equity interests and options
(including all entitlements to patronage refunds), any other allocated equity
interests, and unallocated and capital reserves of the North Dakota Cooperative
and Colorado Cooperative (all such interests referred to herein as "North Dakota
Cooperative Equity Interests" or "Colorado Cooperative Equity Interests",
respectively), and membership interests in the North Dakota Cooperative and
Colorado Cooperative, for equal Equity Interests and membership interests in
Colorado Cooperative, shall be as follows:
(a) EXCHANGE AND CONTINUATION OF NORTH DAKOTA COOPERATIVE MEMBERSHIPS.
At the Effective Time, without any further action by the Constituent
Cooperatives or any of their respective members, each holder of
Membership Stock, $125 par value per share, of the North Dakota
Cooperative shall become and be a member of Colorado Cooperative, to
the extent they are eligible for membership under the Surviving Entity
Articles and the Surviving Entity Bylaws, in such class and with such
incidents of membership as are set forth in the Surviving Entity
Articles and the Surviving Entity Bylaws.
(b) COLORADO COOPERATIVE MEMBERSHIPS. As of the Effective Time, without
any further action by the Constituent Cooperatives or any of their
respective members, the North Dakota Cooperative, as the sole member of
Colorado Cooperative, shall cease to exist by operation of the merger
and shall cease to be a member of Colorado Cooperative.
(c) EXCHANGE AND CONTINUATION OF NORTH DAKOTA COOPERATIVE EQUITY
INTERESTS. As of the Effective Time, without any further action by the
Constituent Cooperatives or any of their respective members, all Equity
Interests standing on the books of the North Dakota Cooperative
immediately prior to the Effective Time shall be determined and
exchanged for equal Equity Interests in Colorado Cooperative at its
stated dollar amount on a dollar-for-dollar basis, including as
follows:
(i) MEMBERSHIP STOCK. Each share of Membership Stock, $125 par
value per share, of the North Dakota Cooperative issued and
outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one (1)
share of Membership Stock, $125 par value per share, of
Colorado Cooperative.
(ii) EQUITY STOCK. Each share of Equity Stock, $2.50 par value per
share, of the North Dakota
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Cooperative issued and outstanding immediately prior to the
Effective Time shall cease to be outstanding and shall be
exchanged for one (1) share of Equity Stock, $2.50 par value
per share, of Colorado Cooperative.
(iii) SERIES A 6% REDEEMABLE CUMULATIVE PREFERRED STOCK. Each share
of Series A 6% Redeemable Cumulative Preferred Stock, $100 par
value per share, of the North Dakota Cooperative issued and
outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one (1)
share of Series A 6% Redeemable Cumulative Preferred Stock,
$100 par value per share, of Colorado Cooperative.
(iv) SERIES B 2% REDEEMABLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series B 2% Redeemable Non-Cumulative Preferred
Stock, $100 par value per share, of the North Dakota
Cooperative issued and outstanding immediately prior to the
Effective Time shall cease to be outstanding and shall be
exchanged for one (1) share of Series B 2% Redeemable
Non-Cumulative Preferred Stock, $100 par value per share, of
Colorado Cooperative.
(v) SERIES C 6% CONVERTIBLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series C 6% Convertible Non-Cumulative Preferred
Stock, $100 par value per share, of the North Dakota
Cooperative issued and outstanding immediately prior to the
Effective Time shall cease to be outstanding and shall be
exchanged for one (1) share of Series C 6% Convertible
Non-Cumulative Preferred Stock, $100 par value per share, of
Colorado Cooperative.
(vi) OPTIONS TO PURCHASE SERIES C 6% CONVERTIBLE NON-CUMULATIVE
PREFERRED STOCK. Each option to purchase shares of Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value per
share, of the North Dakota Cooperative which have been granted
and which have not been exercised immediately prior to the
Effective Time shall cease to be exercisable and shall be
exchanged for an option to purchase a like number of shares of
Series C 6% Convertible Non-Cumulative Preferred Stock, $100
par value per share, of Colorado Cooperative.
(vii) PATRONAGE EQUITY INTERESTS AND UNITS OF EQUITY PARTICIPATION.
All patronage refunds (qualified and non-qualified), units of
equity participation and non-voting units of equity
participation and any other allocated or to be allocated
patronage equity interests (including all entitlements
thereto) standing on the books of the North Dakota Cooperative
immediately prior to the Effective Time (which are not
otherwise evidenced by capital stock) shall be exchanged for
equal patronage refunds, units of equity participation and
non-voting units of equity participation, and allocated or to
be allocated equity interests, entitlements to patronage
refunds, or other equal patronage equity interests on the
books of Colorado Cooperative, at their stated dollar amount
on a dollar-for-dollar basis, and in such denominations or
other designations or series so as to preserve the year of
issue (as Colorado Cooperative deems necessary) and other
terms and conditions of the original issuance; and each unit
of equity participation so exchanged shall be subject on the
books of Colorado Cooperative to the same obligation for loss
allocation as standing on the books of the North Dakota
Cooperative immediately prior to the Effective Time.
(viii) NET EFFECT. The net effect of the exchange of North Dakota
Cooperative Equity Interests for equal Colorado Cooperative
Equity Interests shall be that the holders of North Dakota
Cooperative Equity Interests standing on the books of the
North Dakota Cooperative immediately prior to the Effective
Time shall hold and will have equal Colorado Cooperative
Equity Interests immediately following the Effective Time, in
terms of stated dollar amount on a dollar-for-dollar basis,
year of issue (as determined necessary), loss allocation
obligations and any other rights and preferences, and that the
deferred patronage, unallocated reserves and other unallocated
North Dakota Cooperative Equity Interests, as standing on its
books immediately prior to the Effective Time, shall be
exchanged and credited for an equal Colorado Cooperative
Equity Interest immediately following the Effective Time, in
terms of stated dollar amount on a dollar-for-dollar basis and
other rights and preferences.
(d) NORTH DAKOTA COOPERATIVE EQUITY INTERESTS. All shares of Membership
Stock,
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$125 par value per share, Equity Stock, $2.50 par value per share,
Series A 6% Redeemable Cumulative Preferred Stock, $100 par value per
share, Series B 2% Redeemable Non-Cumulative Preferred Stock, $100 par
value per share, Series C 6% Convertible Non-Cumulative Preferred
Stock, $100 par value per share, and options to purchase Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value per share,
on the books of North Dakota Cooperative immediately prior to the
Effective Time shall be cancelled and shall cease to exist.
(e) COLORADO COOPERATIVE EQUITY INTERESTS. Prior to the Effective Time,
the North Dakota Cooperative is the sole member of Colorado Cooperative
and all equity interest of any and every nature in Colorado Cooperative
is owned by and held in the name of the North Dakota Cooperative. At
the Effective Time, the North Dakota Cooperative, as the merging
entity, shall merge with and into Colorado Cooperative and shall cease
to exist in its own right. All Colorado Cooperative Equity Interests of
any and every nature standing on the books of Colorado Cooperative and
held by the North Dakota Cooperative immediately prior to the Effective
Time shall be cancelled.
(f) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Membership in
Colorado Cooperative and all Colorado Cooperative Equity Interests,
whether issued or credited in exchange for North Dakota Cooperative
Equity Interests or continued with respect to Colorado Cooperative
Equity Interests as described above, shall in all instances be governed
by the provisions of the Surviving Entity Articles and the Surviving
Entity Bylaws.
(g) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of North
Dakota Cooperative Equity Interests and each holder of Colorado
Cooperative Equity Interests shall take such action or cause to be
taken such action as Colorado Cooperative may reasonably deem necessary
or appropriate to effect the exchange and continuation of the equity
interests hereunder, including without limitation the execution and
delivery of any stock certificates or other evidences of equity being
exchanged or continued hereunder.
SECTION 7. FURTHER ASSURANCES. From time to time and after the
Effective Time, as and when requested by Colorado Cooperative, or its successors
or assigns, the North Dakota Cooperative shall execute and deliver or cause to
be executed and delivered all such deeds and other instruments, and shall take
or cause to be taken all such further action or actions, as Colorado
Cooperative, or its successors or assigns, may deem necessary or desirable in
order to vest in and confirm to Colorado Cooperative, or its successors or
assigns, title to and possession of all of the properties, rights, privileges,
powers and franchises referred to in Section 3 of this Plan, and otherwise to
carry out the intent and purposes of this Plan. If Colorado Cooperative shall at
any time deem that any further assignments or assurances or any other acts are
necessary or desirable to vest, perfect or confirm of record or otherwise the
title to any property or to enforce any claims of the North Dakota Cooperative
or Colorado Cooperative vested in Colorado Cooperative pursuant to this Plan,
the officers of Colorado Cooperative or its successors or assigns, are hereby
specifically authorized as attorneys-in-fact of each the North Dakota
Cooperative and Colorado Cooperative (which appointment is irrevocable and
coupled with an interest), to execute and deliver any and all such deeds,
assignments and assurances and to do all such other acts in the name and on
behalf of each the North Dakota Cooperative and Colorado Cooperative, or
otherwise, as such officer shall deem necessary or appropriate to accomplish
such purpose.
SECTION 8. EFFECTIVE TIME. The Dakota Merger shall become effective at
the later of the filing of the Articles of Merger with the Secretary of State of
North Dakota and the filing of the Statement of Merger with the Secretary of
State of Colorado (the "Effective Time").
SECTION 9. GOVERNING LAW. This Plan shall be governed by and construed
in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, this Plan has been agreed to and executed by the
duly authorized representatives of the North Dakota Cooperative and Colorado
Cooperative, as of the date first set forth above.
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DAKOTA GROWERS PASTA COMPANY
/s/ Xxxx X. Xxxxxxxxx, III
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By: Xxxx X. Xxxxxxxxx, III
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Its: Chairman
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DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE
/s/ Xxxx X. Xxxxxxxxx, III
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By: Xxxx X. Xxxxxxxxx, III
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Its: Chairman
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