EXHIBIT 2.4
AMENDED AND RESTATED
TRANSACTION AGREEMENT
THIS AMENDED AND RESTATED TRANSACTION AGREEMENT ("Agreement") is
made and entered into as of March 12, 2002, by and among DAKOTA GROWERS PASTA
COMPANY, a North Dakota cooperative association (the "North Dakota
Cooperative"), DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE, a Colorado
cooperative association (the "Colorado Cooperative"), DAKOTA GROWERS
CORPORATION, a Colorado corporation (the "Colorado Corporation"), and DAKOTA
GROWERS RESTRUCTURING COMPANY, INC., a North Dakota corporation (the "North
Dakota Corporation").
WHEREAS, North Dakota Cooperative, Colorado Cooperative, Colorado
Corporation and North Dakota Corporation are each organized to benefit and serve
their respective members, patrons and/or shareholders; and
WHEREAS, the parties believe the interests of their respective members
or shareholders will best be benefited and served if the parties reorganize
their business operations and corporate structure whereby: (i) the North Dakota
Cooperative will merge with and into Colorado Cooperative, with Colorado
Cooperative being the surviving entity (the "Colorado Cooperative Merger"); (ii)
Colorado Cooperative will then merge with and into Colorado Corporation, with
Colorado Corporation being the surviving entity (the "Colorado Corporation
Merger"); and (iii) Colorado Corporation will then merge with and into North
Dakota Corporation, with North Dakota Corporation being the surviving entity
(the "North Dakota Corporation Merger"). The Colorado Cooperative Merger, the
Colorado Corporation Merger and the North Dakota Corporation Merger may be
referred to in this Agreement individually as a "Merger" or "Transaction" and
collectively as the "Mergers" or "Transactions"; and
WHEREAS, the parties have now agreed on the final terms and conditions
of the Mergers, and wish to: (i) memorialize these agreements as more
particularly described herein; and (ii) enter into this Agreement for the
purpose of effecting the Mergers;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
OVERVIEW OF THE TRANSACTIONS
SECTION 1.01 PURPOSE. The purpose of the transactions contemplated by
this Agreement is to reorganize the structure of the North Dakota Cooperative
from a North Dakota cooperative association into a North Dakota corporation.
This reorganization will be accomplished through a three-step merger process.
First, the North Dakota Cooperative shall merge with and into Colorado
Cooperative. Second, Colorado Cooperative will merge with and into Colorado
Corporation. Third, Colorado Corporation will merge with and into North Dakota
Corporation. The Colorado Cooperative Merger, the Colorado Corporation Merger
and the North Dakota Corporation Merger are separate and distinct transactions,
and each Merger shall be individually consummated. Although the Mergers are
separate transactions: (i) consummation of the Colorado Corporation Merger is
contingent upon consummation of the Colorado Cooperative Merger and consummation
of the Colorado Cooperative Merger is contingent upon satisfaction of all
conditions precedent for consummation of the Colorado Corporation Merger; and
(ii) consummation of the North Dakota Corporation Merger is contingent upon
consummation of the Colorado Corporation Merger and consummation of the Colorado
Corporation Merger is contingent upon satisfaction of all conditions precedent
for consummation of the North Dakota Corporation Merger. Upon completion of all
of the Mergers, the North Dakota Cooperative, Colorado Cooperative and Colorado
Corporation will cease to exist and North Dakota Corporation will continue as
the sole surviving entity.
SECTION 1.02 THE COLORADO COOPERATIVE MERGER. Subject to the terms and
conditions set forth in this Agreement and the Plan of Merger attached hereto as
Exhibit A (the "Colorado Cooperative Merger Agreement), the North Dakota
Cooperative will merge with and into Colorado Cooperative. Colorado Cooperative
shall be the surviving entity (the "Surviving Colorado Cooperative Merger
Entity"). Immediately after completion of
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the Colorado Cooperative Merger and without any further action by its board of
directors and members, Colorado Cooperative, as the Surviving Colorado
Cooperative Merger Entity, shall merge with and into Colorado Corporation as
described in Section 1.03 hereof.
SECTION 1.03 THE COLORADO CORPORATION MERGER. Subject to the terms and
conditions set forth in this Agreement and the Plan of Merger attached hereto as
Exhibit B (the "Colorado Corporation Merger Agreement"), Colorado Cooperative
will merge with and into Colorado Corporation. Colorado Corporation shall be the
surviving entity (the "Surviving Colorado Corporation Merger Entity").
Immediately after completion of the Colorado Corporation Merger and without any
further action by its board of directors and members, Colorado Corporation, as
the Surviving Colorado Corporation Merger Entity, shall merge with and into
North Dakota Corporation as described in Section 1.04 hereof.
SECTION 1.04 THE NORTH DAKOTA CORPORATION MERGER. Subject to the terms
and conditions set forth in this Agreement and the Plan of Merger attached
hereto as Exhibit C (the "North Dakota Corporation Merger Agreement), Colorado
Corporation will merge with and into North Dakota Corporation. North Dakota
Corporation shall be the surviving entity (the "Surviving Entity"), and
thereafter shall continue to exist and operate as Dakota Growers Pasta Company,
Inc. under the laws of the State of North Dakota.
SECTION 1.05 THE CLOSING. The closing of the Mergers (the "Closing")
will take place on the date the Effective Time occurs at the offices of
Xxxxxxxxx & Xxxxxx P.L.L.P., 4200 IDS Center, 00 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 or on such other date and/or at such other place as
the parties may agree.
SECTION 1.06 ACTIONS AT THE CLOSING. At the Closing, the parties shall
take the following actions:
(a) Colorado Cooperative Merger. The North Dakota Cooperative and
Colorado Cooperative shall (i) execute the Colorado
Cooperative Merger Agreement, (ii) execute and deliver to each
other the various certificates, instruments, and documents
referred to in the Colorado Cooperative Merger Agreement, and
(iii) execute and file with the Secretary of State of the
States of North Dakota and Colorado articles of merger as
required by the laws of the States of North Dakota and
Colorado to effectuate the merger in accordance with the terms
of the Colorado Cooperative Merger Agreement.
(b) Colorado Corporation Merger. Colorado Cooperative and Colorado
Corporation shall (i) execute the Colorado Corporation Merger
Agreement, (ii) execute and deliver to each other the various
certificates, instruments, and documents referred to in the
Colorado Corporation Merger Agreement, and (iii) execute and
file with the Colorado Secretary of State a statement of
merger as required by the laws of the State of Colorado to
effectuate the merger in accordance with the terms of the
Colorado Corporation Merger Agreement.
(c) North Dakota Corporation Merger. Colorado Corporation and
North Dakota Corporation shall (i) execute the North Dakota
Corporation Merger Agreement, (ii) execute and deliver to each
other the various certificates, instruments, and documents
referred to in the North Dakota Corporation Merger Agreement,
and (iii) execute and file with the Secretaries of States of
State for Colorado and North Dakota articles of merger as
required by the laws of the States of Colorado and North
Dakota to effectuate the merger in accordance with the terms
of the North Dakota Corporation Merger Agreement.
SECTION 1.07 EFFECTIVE TIME. Each of the Mergers shall become effective
on the date on which the articles of merger and statement of merger have been
duly filed in the respective offices of the North Dakota and Colorado Secretary
of State as required by law (the "Effective Time"). At any time after the
Effective Time, North Dakota Corporation as the Surviving Entity may take any
action (including executing and delivering any document) in the name and on
behalf of any party to this Agreement in order to carry out and effectuate the
transactions contemplated by this Agreement.
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SECTION 1.08 EFFECT OF THE MERGERS.
(a) Articles of Incorporation and By-Laws. The Articles of
Incorporation of North Dakota Corporation attached hereto as Exhibit D and the
By-Laws of North Dakota Corporation attached hereto as Exhibit E shall become
the Articles of Incorporation and By-Laws of the Surviving Entity.
(b) Directors and Officers. The officers and directors of the North
Dakota Cooperative at the Effective Time shall, from and after the Effective
Time, be the directors and officers of North Dakota Corporation (the "North
Dakota Corporation Directors and Officers") to serve until their respective
terms have expired and their successors have been duly elected and qualified in
accordance with the terms of North Dakota Corporation's Articles of
Incorporation and By-Laws. The terms of the North Dakota Corporation Directors
and Officers shall expire on the date each such director's or officer's term
would have expired under the North Dakota Cooperative's Articles of
Incorporation and By-Laws had the Mergers not occurred. At the Effective Time,
the initial directors and officers of Colorado Cooperative, Colorado Corporation
and North Dakota Corporation immediately prior to the Effective Time shall
resign as directors and officers of Colorado Cooperative, Colorado Corporation
and North Dakota Corporation, respectively.
(c) Stock and Units of Equity Participation. At the Effective Time,
without any further action by the parties or any of their respective members or
shareholders, and as further described in the Colorado Cooperative Merger
Agreement, the Colorado Corporation Merger Agreement and the North Dakota
Corporation Merger Agreement:
(i) Each member of the North Dakota Cooperative prior to the
Effective Time shall first become a member of Colorado
Cooperative as a result of the Colorado Cooperative Merger,
then shall automatically become a shareholder of Colorado
Corporation upon consummation of the Colorado Corporation
Merger and then shall automatically become a shareholder of
North Dakota Corporation as the Surviving Entity upon
consummation of the North Dakota Corporation Merger; and
(ii) Upon consummation of the Colorado Cooperative Merger, (1)
the stock and units of equity participation held by each
member of the North Dakota Cooperative shall be automatically
converted into like forms and amounts (on a one-for-one basis)
of stock and units of equity participation of Colorado
Cooperative and (2) all stock and units of equity
participation of Colorado Cooperative owned by the North
Dakota Cooperative shall be cancelled without payment of any
consideration therefor. Upon consummation of the Colorado
Corporation Merger, (1) each share of Membership Stock of
Colorado Cooperative shall be automatically converted into
twenty-five (25) shares of Common Stock of Colorado
Corporation, (ii) each share of Equity Stock of Colorado
Cooperative shall be automatically converted into one (1)
share of Common Stock of Colorado Corporation and one (1)
share of Series D Non-Cumulative Delivery Preferred Stock of
Colorado Corporation, (iii) each share of Series A 6%
Redeemable Cumulative Preferred Stock of Colorado Cooperative,
shall be automatically converted into one (1) share of Series
A 6% Redeemable Cumulative Preferred Stock of Colorado
Corporation, (iv) each share of Series B 2% Redeemable
Non-Cumulative Preferred Stock of Colorado Cooperative shall
be automatically converted into one (1) share of Series B 2%
Redeemable Non-Cumulative Preferred Stock of Colorado
Corporation, (v) each share of Series C 6% Convertible
Non-Cumulative Preferred Stock of Colorado Cooperative shall
be automatically converted into one (1) share of Series C 6%
Convertible Non-Cumulative Preferred Stock of Colorado
Corporation, (vi) each option to purchase shares of Series C
6% Convertible Non-Cumulative Preferred Stock of Colorado
Cooperative shall be automatically converted into an option to
purchase a like number of shares of Series C 6% Convertible
Non-Cumulative Preferred Stock of Colorado Corporation and
(vii) every $7.36 of Non-Qualified Written Notices of
Allocation in Colorado Cooperative shall be automatically
converted into one (1) share of Common Stock of Colorado
Corporation, and (2) all stock of Colorado Corporation owned
by Colorado Cooperative shall be cancelled without payment of
any consideration therefor. Upon consummation of the North
Dakota Corporation Merger, (1) the stock held by each
shareholder of Colorado Corporation shall be automatically
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converted into like forms and amounts (on a one-for-one basis)
of stock of North Dakota Corporation, (2) the options held by
each holder of options to purchase shares of Series C 6%
Convertible Non-Cumulative Preferred Stock of Colorado
Corporation shall be automatically converted into options to
purchase a like number of shares of Series C 6% Convertible
Non-Cumulative Preferred Stock of North Dakota Corporation and
(3) all stock of North Dakota Corporation owned by Colorado
Corporation shall be cancelled without payment of any
consideration therefor.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE NORTH DAKOTA COOPERATIVE
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF THE NORTH DAKOTA
COOPERATIVE. The North Dakota Cooperative represents and warrants to Colorado
Cooperative that the statements contained in this Article II are correct and
complete in all material respects as of the date of this Agreement.
SECTION 2.02 ORGANIZATION AND GOOD STANDING. The North Dakota
Cooperative is a cooperative association duly organized and existing under
Section 10-15 of the North Dakota Cooperative Association Act (as amended, the
"North Dakota Cooperative Act"), is in good standing under the laws of the State
of North Dakota, and has all requisite corporate power and authority to own its
properties and conduct its business as it is presently being conducted. The
North Dakota Cooperative is duly qualified to do business and is in good
standing in each jurisdiction in which it conducts business or owns or leases
properties of a nature which would require such qualification.
SECTION 2.03 CAPITAL STOCK AND EQUITY PARTICIPATION UNITS. As of the
date hereof, the authorized capital stock of the North Dakota Cooperative
consists of 2,000 shares of Membership Stock, of which 1,155 shares are issued
and outstanding, 25,000,000 shares of Equity Stock, of which 11,275,297 shares
are issued and outstanding, and 50,000 shares of Preferred Stock. Of the 50,000
shares of Preferred Stock authorized, a total of 13,327 shares have been
designated as Series A 6% Redeemable Cumulative Preferred Stock, Series B 6%
Redeemable Non-Cumulative Preferred Stock or Series C 6% Convertible
Non-Cumulative Preferred Stock. The outstanding shares of Membership Stock,
Equity Stock and Preferred Stock of North Dakota Cooperative have been duly
authorized and are validly issued and outstanding.
SECTION 2.04 FINANCIAL STATEMENTS. The North Dakota Cooperative has
delivered to Colorado Cooperative its audited financial statements as of July
31, 2001, accompanied by the opinion of Xxxx Bailly LLP and its unaudited
financial statements as of October 31, 2001, certified by the Chief Financial
Officer of the North Dakota Cooperative. Such financial statements fairly
present the financial position of the North Dakota Cooperative at the dates
indicated therein and the results of its operation for the periods indicated
therein, in conformity with generally accepted accounting principles
consistently applied. There has been no material adverse change in the financial
condition or results of operations of the North Dakota Cooperative since the
date of such financial statements.
SECTION 2.05 UNDISCLOSED LIABILITIES. Except for those liabilities
reflected in the financial statements referred to in Section 2.04 and for
liabilities incurred in the ordinary course of business since October 31, 2001,
the North Dakota Cooperative has not incurred a liability that, either
individually or in the aggregate, has had or will have a material adverse effect
on the North Dakota Cooperative.
SECTION 2.06 COMPLIANCE WITH APPLICABLE LAWS. The North Dakota
Cooperative is in compliance with all applicable laws and regulations the
violation of which would have a material adverse effect on the North Dakota
Cooperative or on its business as currently conducted. The North Dakota
Cooperative has all material licenses and permits required by law or otherwise
necessary for the proper operation of its business as currently conducted, all
of such licenses and permits are in full force and effect, and no action to
terminate, withdraw, not renew or materially limit or otherwise change any such
license or permit is pending or has been threatened by any governmental agency
or other party.
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SECTION 2.07 LEGAL PROCEEDINGS. There is no material action, proceeding
or investigation by any administrative or regulatory body or other person which
has been commenced or is pending, or to the best of the North Dakota
Cooperative's knowledge after reasonable inquiry, is threatened against the
North Dakota Cooperative or any of the assets which are owned by the North
Dakota Cooperative.
SECTION 2.08 ABSENCE OF DEFAULTS. The North Dakota Cooperative is not
in any material respect in default under any provision of its Articles of
Incorporation or By-Laws or any material indenture, mortgage, loan agreement or
other material agreement to which it is a party or by which it is bound, and the
North Dakota Cooperative is not in violation of any statute, order, rule or
regulation of any court or governmental agency having jurisdiction over it or
its properties which if enforced could have a material adverse effect on its
business, and except for any consent or approval identified on Exhibit F
attached hereto, neither the execution and delivery of this Agreement nor the
consummation of the Transactions in accordance with this Agreement will in any
material respect conflict with or result in a breach of any of the foregoing,
which if enforced could have a material adverse effect on its business.
SECTION 2.09 AUTHORIZATION. The North Dakota Cooperative has the
corporate power and authority to execute and to perform its obligations under
this Agreement (subject to Section 7.01(a)). This Agreement and the Transaction
have been duly and validly authorized by the Board of Directors of the North
Dakota Cooperative and, except for the approval of its members as required by
Section 7.01(a), no other corporate action is required by the North Dakota
Cooperative in connection with this Agreement or the Transaction. This Agreement
constitutes the valid and binding agreement of the North Dakota Cooperative,
enforceable against the North Dakota Cooperative in accordance with its terms,
except to the extent such enforcement may be limited by the application of
equitable principles where equitable relief is sought or bankruptcy and other
laws relating to the enforcement of creditors, rights generally.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COLORADO COOPERATIVE
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF COLORADO COOPERATIVE.
Colorado Cooperative represents and warrants to the North Dakota Cooperative and
Colorado Corporation that the statements contained in this Article III are
correct and complete in all material respects as of the date of this Agreement.
SECTION 3.02 ORGANIZATION AND GOOD STANDING. Colorado Cooperative is a
cooperative association duly organized and existing under Title 7, Article 56 of
the Colorado Revised Statutes (the "Colorado Cooperative Act"), is in good
standing under the laws of the State of Colorado, and has all requisite
corporate power and authority to own its properties and conduct its business as
it is presently being conducted. Colorado Cooperative is duly qualified to do
business and is in good standing in each jurisdiction in which it conducts
business or owns or leases properties of a nature which would require such
qualification.
SECTION 3.03 CAPITAL STOCK. As of the date hereof, the authorized
capital stock of Colorado Cooperative consists of 2,000 shares of Membership
Stock, of which one (1) share is issued and outstanding, 25,000,000 shares of
Equity Stock, of which no shares are issued and outstanding, and 50,000 shares
of Preferred Stock, of which no shares are outstanding. Of the 50,000 shares of
Preferred Stock authorized, a total of 13,327 shares have been designated as
Series A 6% Redeemable Cumulative Preferred Stock, Series B 6% Redeemable
Non-Cumulative Preferred Stock or Series C 6% Convertible Non-Cumulative
Preferred Stock.
SECTION 3.04 AUTHORIZATION. Colorado Cooperative has the corporate
power and authority to execute and to perform its obligations under this
Agreement (subject to the approval of its member as required by Sections 7.01(b)
and 7.02(a)). This Agreement and the Transaction have been duly and validly
authorized by the Board of Directors of Colorado Cooperative, and except for the
approval of the Board of Directors of North Dakota Cooperative in its capacity
as the sole member of Colorado Cooperative (as required by Sections 7.01(b) and
7.02(a)) no other corporate action is required by Colorado Cooperative in
connection with this Agreement or the Transactions. This Agreement constitutes
the valid and binding agreement of Colorado Cooperative, enforceable
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against Colorado Cooperative in accordance with its terms, except to the extent
such enforcement may be limited by the application of equitable principles where
equitable relief is sought or bankruptcy and other laws relating to the
enforcement of creditors, rights generally.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COLORADO CORPORATION
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF COLORADO CORPORATION.
Colorado Corporation represents and warrants to Colorado Cooperative and North
Dakota Corporation that the statements contained in this Article IV are correct
and complete in all material respects as of the date of this Agreement.
SECTION 4.02 ORGANIZATION AND GOOD STANDING. Colorado Corporation is a
corporation duly organized and existing under Title 7, Article 101 of the
Colorado Revised Statutes, (the "Colorado Corporation Act"), is in good standing
under the laws of the State of Colorado, and has all requisite corporate power
and authority to own its properties and conduct its business as it is presently
being conducted. Colorado Corporation is duly qualified to do business and is in
good standing in each jurisdiction in which it conducts business or owns or
leases properties of a nature which would require such qualification.
SECTION 4.03 CAPITAL STOCK. As of the date hereof, the authorized
capital stock of Colorado Corporation consists of consists of 75,000,000 shares
of Common Stock, of which one (1) share is issued and outstanding, and
25,000,000 shares of Preferred Stock, of which no shares are outstanding. Of the
25,000,000 shares of Preferred Stock authorized, a total of 11,327,480 shares
have been designated as Series A 6% Redeemable Cumulative Preferred Stock,
Series B 6% Redeemable Non-Cumulative Preferred Stock, Series C 6% Convertible
Non-Cumulative Preferred Stock or Series D Delivery Preferred Stock.
SECTION 4.04 AUTHORIZATION. Colorado Corporation has the corporate
power and authority to execute and to perform its obligations under this
Agreement (subject to the approval of its shareholder as required by Sections
7.02(b) and 7.03(a)). This Agreement and the Transaction have been duly and
validly authorized by the Board of Directors of Colorado Corporation, and except
for the approval of the Board of Directors of North Dakota Cooperative as the
sole shareholder of Colorado Corporation (as required by Sections 7.02(b) and
7.03(a)) no other corporate action is required by Colorado Corporation in
connection with this Agreement or the Transactions. This Agreement constitutes
the valid and binding agreement of Colorado Corporation, enforceable against
Colorado Corporation in accordance with its terms, except to the extent such
enforcement may be limited by the application of equitable principles where
equitable relief is sought or bankruptcy and other laws relating to the
enforcement of creditors, rights generally.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NORTH DAKOTA CORPORATION
SECTION 5.01 REPRESENTATIONS AND WARRANTIES OF NORTH DAKOTA
CORPORATION. North Dakota Corporation represents and warrants to Colorado
Corporation that the statements contained in this Article V are correct and
complete in all material respects as of the date of this Agreement.
SECTION 5.02 ORGANIZATION AND GOOD STANDING. North Dakota Corporation
is a corporation duly organized and existing under the North Dakota Business
Corporation Act, is in good standing under the laws of the State of North
Dakota, and has all requisite corporate power and authority to own its
properties and conduct its business as it is presently being conducted. North
Dakota Corporation is duly qualified to do business and is in good standing in
each jurisdiction in which it conducts business or owns or leases properties of
a nature which would require such qualification.
SECTION 5.03 CAPITAL STOCK. As of the date hereof, the authorized
capital stock of North Dakota Corporation consists of consists of 75,000,000
shares of Common Stock, of which one (1) share is issued and outstanding, and
25,000,000 shares of Preferred Stock, of which no shares are outstanding. Of the
25,000,000
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shares of Preferred Stock authorized, a total of 11,327,480 shares have been
designated as Series A 6% Redeemable Cumulative Preferred Stock, Series B 6%
Redeemable Non-Cumulative Preferred Stock, Series C 6% Convertible
Non-Cumulative Preferred Stock or Series D Delivery Preferred Stock.
SECTION 5.04 AUTHORIZATION. North Dakota Corporation has the corporate
power and authority to execute and to perform its obligations under this
Agreement. This Agreement and the Transaction have been duly and validly
authorized by the Board of Directors of North Dakota Corporation, and except for
the approval of the Board of Directors of North Dakota Cooperative as the sole
shareholder of North Dakota Corporation (as required by Section 7.03(b)) no
other corporate action is required by North Dakota Corporation in connection
with this Agreement or the Transactions. This Agreement constitutes the valid
and binding agreement of North Dakota Corporation, enforceable against North
Dakota Corporation in accordance with its terms, except to the extent such
enforcement may be limited by the application of equitable principles where
equitable relief is sought or bankruptcy and other laws relating to the
enforcement of creditors, rights generally.
ARTICLE VI
COVENANTS
SECTION 6.01 REASONABLE BEST EFFORTS. Each party agrees to cooperate
with the other parties hereto and to use its reasonable best efforts in good
faith to take, or cause to be taken, all actions, and to do or cause to be done,
all things necessary, proper or desirable, or advisable under applicable laws,
so as to permit consummation of the Mergers as promptly as practicable. In
addition, each party shall cooperate and use its reasonable best efforts to
prepare all documentation, to effect all filings and to obtain all permits,
consents, approvals and authorizations of all third parties necessary to
consummate the Transactions contemplated by this Agreement.
SECTION 6.02 CONDUCT OF BUSINESS. During the period from the date of
this Agreement to the Effective Time, except as expressly contemplated by this
Agreement, each of the North Dakota Cooperative, Colorado Cooperative, Colorado
Corporation and North Dakota Corporation shall conduct its business in the
ordinary course and in a manner consistent with its past practices (except as
expressly contemplated hereby), and shall use good faith efforts to preserve
intact its business organization, properties (except as they may be sold, used
or otherwise disposed of in the ordinary course) and the good will of its
members, suppliers, customers and others having business relationships with it.
SECTION 6.03 FORBEARANCES. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated by this
Agreement, without the prior consent of the other parties to this Agreement, no
party shall:
(a) grant to any person any option or other right to acquire capital
stock or other equity interests, except for allocation of patronage
equities in a manner consistent with past practice;
(b) issue any additional shares or units of capital stock and other
equity interests, except in the ordinary course of business and
consistent with past practice;
(c) enter into, amend or terminate any material contract, lease or
understanding;
(d) amend its Articles of Incorporation, its By-Laws or any board
policies;
(e) incur any indebtedness for borrowed money or make any commitment to
borrow money, except indebtedness incurred in the ordinary course of
business pursuant to credit arrangements existing as of the date of
this Agreement (including any renewals thereof);
(f) make any material capital expenditures other than in the ordinary
course of business or which were disclosed to the other party;
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(g) mortgage any of its assets or properties, or except in the ordinary
course of business, sell any of its material assets or properties;
(h) pay any dividends or make any distributions with respect to its
capital stock or equity interests, except in the ordinary course of
business;
(i) reclassify, combine, subdivide, split, or amend its capital stock
or equity interests;
(j) purchase, acquire or redeem any shares of its capital stock or
equity interests, except in the ordinary course of business; or
(k) agree or commit to do any of the foregoing.
SECTION 6.04 MEETINGS OF MEMBERS OR STOCKHOLDERS. The North Dakota
Cooperative will take all steps necessary to call an appropriate meeting of its
members, for the purpose of considering and voting on this Agreement (which vote
is only necessary and shall only constitute a vote to the extent that this
Agreement relates to the Colorado Cooperative Merger) and the Colorado
Cooperative Merger Agreement in accordance with its respective Articles of
Incorporation, By-Laws and applicable law.
SECTION 6.05 ACCESS. Each party will permit the authorized
representatives of the other parties to have full access at all reasonable
times, and in a manner so as not to interfere with the normal business
operations of such party, to all premises, properties, personnel, books, records
(including tax records), contracts, and documents of or pertaining to such
party, and will furnish them such additional financial and operating data and
other information concerning its business and properties as such other parties
may from time to time reasonably request. Each of the parties will use their
best efforts to cause all confidential information obtained by it from the other
parties to be treated as such, will also use its best efforts not to use such
information in a manner detrimental to such party and, if for any reason the
Transactions are not consummated, will promptly return all documents, papers,
books, records and other materials (and all copies thereof) obtained in the
course of its investigation and evaluation.
SECTION 6.06 NOTICE OF DEVELOPMENTS. Each party will give prompt
written notice to the other of any material adverse development causing a breach
of any of its own representations and warranties contained herein. Except as
specified in such written notice, no disclosure by a party pursuant to this
Section 6.06 shall be deemed to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
SECTION 6.07 EXCLUSIVITY. Except for the Transactions contemplated by
this Agreement, none of the parties will (i) solicit, initiate, or encourage the
submission of any proposal or offer from any person relating to the acquisition
of any capital stock or other voting securities, or any substantial portion of
the assets, of such party (including any acquisition structured as a merger,
consolidation, or share exchange) or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing. Each party will notify the other
party immediately if any person makes any proposal, offer, inquiry, or contact
with respect to any of the foregoing.
SECTION 6.08 REGISTRATION STATEMENT. North Dakota Corporation shall
promptly prepare and file with the SEC a Registration Statement on Form S-4 (the
"Registration Statement") in connection with the issuance of Common Stock,
Series A 6% Redeemable Cumulative Preferred Stock, Series B 6% Redeemable
Non-Cumulative Preferred Stock, Series C 6% Convertible Non-Cumulative Preferred
Stock and Series D Delivery Preferred Stock in the North Dakota Corporation
Merger. The parties shall use their reasonable best efforts to have the
Registration Statement declared effective under the Securities Act of 1933 (the
"Securities Act") as promptly as practicable after such filing, and the parties
shall thereafter mail or deliver the Information Statement Prospectus, which
constitutes a part of the Registration Statement, to their respective members.
ARTICLE VII
CONDITIONS PRECEDENT
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SECTION 7.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE COLORADO
COOPERATIVE MERGER. The respective obligations of the North Dakota Cooperative
and Colorado Cooperative to consummate the Colorado Cooperative Merger and other
matters described in this Agreement, are subject to the satisfaction or waiver
of each of the following conditions on or before the Effective Time, except that
condition (f) must be satisfied and cannot be waived by either party:
(a) The members of the North Dakota Cooperative shall have approved
this Agreement (which approval is only necessary and shall only
constitute an approval of this Agreement to the extent that this
Agreement relates to the Colorado Cooperative Merger) and the Colorado
Cooperative Merger Agreement, all in accordance with the requirements
of applicable law and the Articles of Incorporation and By-Laws of the
North Dakota Cooperative;
(b) The Board of Directors of North Dakota Cooperative, as the sole
member of Colorado Cooperative, shall have approved the Colorado
Cooperative Merger Agreement and this Agreement all in accordance with
the requirements of applicable law and the Articles of Incorporation
and By-Laws of Colorado Cooperative;
(c) No injunction, restraining order or order of any nature issued by
any court of competent jurisdiction, government or governmental agency
enjoining the Transaction shall have been issued and remain in effect;
(d) All consents, approvals and waivers which are necessary in
connection with the Transactions, or any part thereof, shall have been
obtained, including the consents and approvals referred to in Exhibit F
attached hereto;
(e) No action shall have been threatened or instituted by any
governmental agency or any other person challenging the legality of the
Transactions, seeking to prevent or delay consummation of the
Transactions or seeking to obtain divestiture or other relief in the
event of consummation of the Transactions. It is understood in the
event that such an action is threatened or instituted, the parties will
first attempt for a period of 90 days to obtain dismissal or other
favorable resolution of such threatened or actual action prior to
exercise of their right to terminate hereunder;
(f) The Board of Directors of North Dakota Cooperative, as the sole
member of Colorado Cooperative, shall have approved the Colorado
Corporation Merger Agreement and this Agreement as set forth in Section
7.02(a); and
(g) The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the SEC.
SECTION 7.02 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE COLORADO
CORPORATION MERGER. The respective obligations of Colorado Cooperative and
Colorado Corporation to consummate the Colorado Corporation Merger and other
matters described in this Agreement, are subject to the satisfaction or waiver
of each of the following conditions on or before the Effective Time, except that
condition (f) must be satisfied and cannot be waived by either party:
(a) The Board of Directors of North Dakota Cooperative, as the sole
member of Colorado Cooperative, shall have approved this Agreement and
the Colorado Corporation Merger Agreement, all in accordance with the
requirements of applicable law and the Articles of Incorporation and
By-Laws of Colorado Cooperative;
(b) The Board of Directors of North Dakota Cooperative, as the sole
shareholder of Colorado Corporation, shall have approved this Agreement
and the Colorado Corporation Merger Agreement, all in accordance with
the requirements of applicable law and the Articles of Incorporation
and By-Laws of Colorado Corporation;
9
(c) No injunction, restraining order or order of any nature issued by
any court of competent jurisdiction, government or governmental agency
enjoining the Transaction shall have been issued and remain in effect;
(d) All consents, approvals and waivers which are necessary in
connection with the Transactions, or any part thereof, shall have been
obtained, including the consents and approvals referred to in Exhibit F
attached hereto;
(e) No action shall have been threatened or instituted by any
governmental agency or any other person challenging the legality of the
Transactions, seeking to prevent or delay consummation of the
Transactions or seeking to obtain divestiture or other relief in the
event of consummation of the Transactions. It is understood in the
event that such an action is threatened or instituted, the parties will
first attempt for a period of 90 days to obtain dismissal or other
favorable resolution of such threatened or actual action prior to
exercise of their right to terminate hereunder;
(f) The members of the North Dakota Cooperative and the Board of
Directors of North Dakota Cooperative, as the sole member of Colorado
Cooperative, shall have approved the Colorado Cooperative Merger
Agreement and this Agreement as set forth in Section 7.01(a) and
7.01(b), and the Colorado Cooperative Merger should be consummated, and
the Board of Directors of North Dakota Cooperative, as the sole
shareholder of the Colorado Corporation, shall have approved the North
Dakota Corporation Merger Agreement as set forth in Section 7.03(a);
and
(g) The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the SEC.
SECTION 7.03 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE NORTH
DAKOTA CORPORATION MERGER. The respective obligations of Colorado Corporation
and North Dakota Corporation to consummate the North Dakota Corporation Merger
and other matters described in this Agreement, are subject to the satisfaction
or waiver of each of the following conditions on or before the Effective Time,
except that condition (f) must be satisfied and cannot be waived by either
party:
(a) The Board of Directors of North Dakota Cooperative, as the sole
shareholder of Colorado Corporation, shall have approved this Agreement
and the North Dakota Corporation Merger Agreement, all in accordance
with the requirements of applicable law and the Articles of
Incorporation and By-Laws of Colorado Corporation;
(b) The Board of Directors of North Dakota Cooperative, as the sole
shareholder of North Dakota Corporation, shall have approved this
Agreement and the North Dakota Corporation Merger Agreement, all in
accordance with the requirements of applicable law and the Articles of
Incorporation and By-Laws of North Dakota Cooperative;
(c) No injunction, restraining order or order of any nature issued by
any court of competent jurisdiction, government or governmental agency
enjoining the Transaction shall have been issued and remain in effect;
(d) All consents, approvals and waivers which are necessary in
connection with the Transactions, or any part thereof, shall have been
obtained, including the consents and approvals referred to in Exhibit F
attached hereto;
(e) No action shall have been threatened or instituted by any
governmental agency or any other person challenging the legality of the
Transactions, seeking to prevent or delay consummation of the
Transactions or seeking to obtain divestiture or other relief in the
event of consummation of the Transactions. It is understood in the
event that such an action is threatened or instituted, the parties will
first attempt for a period of 90 days to obtain dismissal or other
favorable resolution of such threatened or actual action prior to
exercise of their right to terminate hereunder;
10
(f) The members of the North Dakota Cooperative and the Board of
Directors of North Dakota Cooperative, as the sole member of the
Colorado Cooperative, shall have approved the Colorado Cooperative
Merger Agreement as set forth in Section 7.01(a) and 7.01(b), and the
Board of Directors of North Dakota Cooperative, as the sole member of
the Colorado Cooperative and the sole shareholder of Colorado
Corporation, shall have approved the Colorado Corporation Merger
Agreement and this Agreement as set forth in Section 7.02(a) and
7.02(b), and the Colorado Cooperative Merger and the Colorado
Corporation Merger shall be consummated; and
(g) The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the SEC.
SECTION 7.04 ADDITIONAL CONDITIONS TO OBLIGATION OF THE NORTH DAKOTA
COOPERATIVE. The obligation of the North Dakota Cooperative to consummate the
Colorado Cooperative Merger is subject to the satisfaction or waiver of each of
the following additional conditions at or before the Effective Time:
(a) The representations and warranties of Colorado Cooperative
contained in this Agreement shall be true and correct in all material
respects as of the Effective Time as though such representations and
warranties were made on and as of the Effective Time, and Colorado
Cooperative shall have performed in all material respects all
obligations required to be performed by it under this Agreement and the
Colorado Cooperative Merger Agreement prior to the Effective Time;
(b) The North Dakota Cooperative shall have received a certificate,
dated as of the Effective Time, and executed by the President of
Colorado Cooperative, certifying in such detail as the North Dakota
Cooperative may reasonably request as to the accuracy of such
representations and warranties, the fulfillment of such obligations,
compliance with such covenants and satisfaction of the conditions to
the North Dakota Cooperative's obligation as of the Effective Time; and
(c) All actions, proceedings and documents necessary to carry out the
Transactions shall be reasonably satisfactory to the North Dakota
Cooperative.
SECTION 7.05 ADDITIONAL CONDITIONS TO OBLIGATION OF COLORADO
COOPERATIVE. The obligation of Colorado Cooperative to consummate the Colorado
Cooperative Merger and the Colorado Corporation Merger is subject to the
satisfaction or waiver of each of the following additional conditions at or
before the Effective Time:
(a) The representations and warranties of the North Dakota Cooperative
and Colorado Corporation contained in this Agreement shall be true and
correct in all material respects as of the Effective Time as though
such representations and warranties were made on and as of the
Effective Time, and the North Dakota Cooperative and Colorado
Corporation shall have performed in all material respects all of their
respective obligations required to be performed by each of them under
this Agreement, the Colorado Cooperative Merger Agreement and the
Colorado Corporation Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known
to Colorado Cooperative after the date hereof that alone, or together
with all other facts, events or circumstances, has had or is reasonably
likely to have a material adverse effect on the North Dakota
Cooperative or the Colorado Corporation;
(c) Colorado Cooperative shall have received a certificate, from each
of the North Dakota Cooperative and Colorado Corporation dated as of
the Effective Time, executed by their respective Presidents, certifying
in such detail as Colorado Cooperative may reasonably request as to the
accuracy of their representations and warranties, the fulfillment of
their obligations, compliance with their covenants
11
and satisfaction of the conditions to Colorado Cooperative's
obligations as of the Effective Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transaction shall be reasonably satisfactory to Colorado Cooperative.
SECTION 7.06 ADDITIONAL CONDITIONS TO OBLIGATION OF COLORADO
CORPORATION. The obligation of Colorado Corporation to consummate the Colorado
Corporation Merger and the North Dakota Corporation Merger is subject to the
satisfaction or waiver of each of the following additional conditions at or
before the Effective Time:
(a) The representations and warranties of the Colorado Cooperative and
North Dakota Corporation contained in this Agreement shall be true and
correct in all material respects as of the Effective Time as though
such representations and warranties were made on and as of the
Effective Time, and the Colorado Cooperative and North Dakota
Corporation shall have performed in all material respects all of their
respective obligations required to be performed by each of them under
this Agreement, the Colorado Corporation Merger Agreement and the North
Dakota Corporation Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known
to Colorado Corporation after the date hereof that alone, or together
with all other facts, events or circumstances, has had or is reasonably
likely to have a material adverse effect on the Colorado Cooperative or
the North Dakota Corporation;
(c) Colorado Corporation shall have received a certificate, from each
of the Colorado Cooperative and North Dakota Corporation dated as of
the Effective Time, executed by their respective Presidents, certifying
in such detail as Colorado Corporation may reasonably request as to the
accuracy of their representations and warranties, the fulfillment of
their obligations, compliance with their covenants and satisfaction of
the conditions to Colorado Corporation's obligations as of the
Effective Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transaction shall be reasonably satisfactory to Colorado Corporation.
SECTION 7.07 ADDITIONAL CONDITIONS TO OBLIGATION OF NORTH DAKOTA
CORPORATION. The obligation of North Dakota Corporation to consummate the North
Dakota Corporation Merger is subject to the satisfaction or waiver of each of
the following additional conditions at or before the Effective Time:
(a) The representations and warranties of Colorado Corporation
contained in this Agreement shall be true and correct in all material
respects as of the Effective Time as though such representations and
warranties were made on and as of the Effective Time, and Colorado
Corporation shall have performed in all material respects all
obligations required to be performed by it under this Agreement and the
North Dakota Corporation Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known
to North Dakota Corporation after the date hereof that alone, or
together with all other facts, events or circumstances, has had or is
reasonably likely to have a material adverse effect on Colorado
Corporation;
(c) North Dakota Corporation shall have received a certificate, dated
as of the Effective Time, and executed by the President of Colorado
Corporation, certifying in such detail as North Dakota Corporation may
reasonably request as to the accuracy of such representations and
warranties, the fulfillment of such obligations, compliance with such
covenants and satisfaction of the conditions to North Dakota
Corporation's obligation as of the Effective Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transactions shall be reasonably satisfactory to Colorado Corporation
and to North Dakota Corporation.
12
ARTICLE VIII
POST CLOSING AGREEMENTS
SECTION 8.01 EMPLOYEE BENEFIT PLANS. From and after the Effective Time,
the employee benefit plans of the North Dakota Cooperative in effect as of the
date of this Agreement shall remain in effect with respect to employees of the
North Dakota Cooperative (or their subsidiaries) covered by such plans at the
Closing Date until such time as North Dakota Corporation shall, subject to
applicable law and the terms of such plans, adopt new benefit plans with respect
to employees of North Dakota Corporation. North Dakota Corporation agrees to
honor in accordance with their terms all benefits vested as of the date hereof
under the employee benefit plans of the North Dakota Cooperative. Nothing in
this Section 8.01 shall be interpreted as preventing North Dakota Corporation
from amending, modifying or terminating any employee benefit plan of the North
Dakota Cooperative or other contracts, arrangements, commitments or
understandings, in accordance with their terms and applicable law.
SECTION 8.02 INDEMNIFICATION; DIRECTORS' AND OFFICERS; INSURANCE. From
and after the Effective Time, the Surviving Entity shall indemnify each present
and former director, officer, employee or agent of the North Dakota Cooperative,
Colorado Cooperative or Colorado Corporation and each person who, while a
director or officer of the North Dakota Cooperative and at the request of the
North Dakota Cooperative, serves or has served another corporation, cooperative,
partnership, joint venture or any other enterprise as a director, officer or
partner, against any losses, claims, damages, liabilities or expenses (including
legal fees) arising out of or pertaining to matters existing or occurring at or
before the Effective Time, whether asserted or claimed prior to, at or after the
Effective Time, to the fullest extent permitted by law. The Surviving Entity may
obtain insurance coverage against any such loss, claim or expense, subject to
standard exclusions and exceptions to coverage, but is not obligated to do so.
ARTICLE IX
TERMINATION
SECTION 9.01 TERMINATION OF AGREEMENT. This Agreement shall be
terminated and the Transactions abandoned if at any time prior to the Effective
Time:
(a) The members of the North Dakota Cooperative fail to approve the
Merger as required by Section 7.01(a), or the member of Colorado
Cooperative fails to approve the Merger as required by Sections 7.01(b)
and 7.02(a), or the shareholder of Colorado Corporation fails to
approve the Merger as required by Sections 7.02(b) and 7.03(a), or the
shareholder of North Dakota Corporation fails to approve the Merger as
required by Section 7.03(b);
(b) The parties mutually agree in writing to terminate this Agreement;
or
(c) Either party to a Merger delivers a written notice to the other, to
the effect that (i) one or more of the conditions to its obligations as
set forth herein cannot be met, (ii) the other party has defaulted in a
material respect under one or more of its covenants or agreements
contained herein, or (iii) any of the representations or warranties of
the other party are or have become materially untrue or incorrect as of
the date of such notice, and in any case such condition or conditions
have not been satisfied, such default or defaults have not been
remedied or such representation or warranty has not been rendered true
and correct within thirty(30) days after such notice is mailed; or
(d) The Closing has not occurred on or before June 30, 2002, or such
later date as the parties may mutually agree upon.
SECTION 9.02 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 9.01 above, all rights and obligations of the parties
hereunder shall terminate without any liability of either party to the other
(except for any liability of a party then in breach); provided, however, that
the confidentiality and return of documents provisions contained in or referred
to Section 6.05 above shall survive any such termination.
13
ARTICLE X
MISCELLANEOUS
SECTION 10.01 WAIVER. At any time before the Effective Time, any
provision of this Agreement may, to the extent legally allowed, be waived by the
party benefited by the provision by an agreement in writing between the parties
hereto executed in the same manner as this Agreement, except that after approval
of the Mergers contemplated by this Agreement by the respective members of the
North Dakota Cooperative and Colorado Cooperative, there may not be any waiver
of any provision of this Agreement which would reduce the amount or form of
consideration to be received by members in the Mergers.
SECTION 10.02 AMENDMENT. The parties by mutual consent may amend,
modify or supplement this Agreement in such manner as may be agreed upon in
writing; provided, however, that after approval of the Mergers by the respective
members of the North Dakota Cooperative and Colorado Cooperative, this Agreement
may not be amended if it would violate applicable law or reduce the amount or
form of the consideration to be received by members in the Mergers.
SECTION 10.03 BINDING NATURE. This Agreement shall be binding upon and
inure only to the benefit of the parties hereto and their respective successors
and assigns, provided that neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by any of the
parties hereto without the prior written consent of the other parties hereto.
SECTION 10.04 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 10.05 ENTIRE AGREEMENT. This Agreement, the Colorado
Cooperative Merger Agreement, the Colorado Corporation Merger Agreement, the
North Dakota Corporation Merger Agreement and the other documents referred to
herein and therein set forth the entire understanding of the parties hereto with
respect to the matters provided for herein and therein and supersede all prior
agreements, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of either party.
SECTION 10.06 NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if delivered
personally, telecopied (with confirmation) or mailed by certified or registered
mail (return receipt requested), to the parties at the following addresses (or
such other address as such party may specify by like notice):
If to the North Dakota Cooperative: Dakota Growers Pasta Company
Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxx
If to the Colorado Cooperative: Dakota Growers Restructuring
Cooperative
Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxx
If to the Colorado Corporation: Dakota Growers Corporation
Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxx
If to the North Dakota Corporation: Dakota Growers Pasta Company, Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxx
14
SECTION 10.07 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the parties contained in Articles II, III, IV
and V of this Agreement shall form the basis for closing conditions only, shall
not survive the Effective Time and shall not form the basis for any action by or
on behalf of either party or any third party for breach, misrepresentation or
indemnity at any time after the Effective Time.
SECTION 10.08 CAPTIONS. The article and section headings of this
Agreement are for convenience only and shall not affect the meaning or
construction of this Agreement.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
DAKOTA GROWERS PASTA COMPANY
/s/ Xxxx X. Xxxxxxxxx, III
----------------------------------------------
By: Xxxx X. Xxxxxxxxx, III
-------------------------------------------
Its: Chairman
------------------------------------------
DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE
/s/ Xxxx X. Xxxxxxxxx, III
----------------------------------------------
By: Xxxx X. Xxxxxxxxx, III
-------------------------------------------
Its: Chairman
------------------------------------------
DAKOTA GROWERS CORPORATION
/s/ Xxxx X. Xxxxxxxxx, III
----------------------------------------------
By: Xxxx X. Xxxxxxxxx, III
-------------------------------------------
Its: Chairman
------------------------------------------
DAKOTA GROWERS RESTRUCTURING COMPANY, INC.
/s/ Xxxx X. Xxxxxxxxx, III
----------------------------------------------
By: Xxxx X. Xxxxxxxxx, III
-------------------------------------------
Its: Chairman
------------------------------------------
16
EXHIBIT A TO TRANSACTION AGREEMENT
COLORADO COOPERATIVE MERGER AGREEMENT
See Exhibit 2.1 to the Registration Statement for Exhibit A to Transaction
Agreement
17
EXHIBIT B TO TRANSACTION AGREEMENT
COLORADO CORPORATION MERGER AGREEMENT
See Exhibit 2.2 to the Registration Statement for Exhibit B to Transaction
Agreement
18
EXHIBIT C TO TRANSACTION AGREEMENT
NORTH DAKOTA CORPORATION MERGER AGREEMENT
See Exhibit 2.3 to the Registration Statement for Exhibit C to Transaction
Agreement
19
EXHIBIT D TO TRANSACTION AGREEMENT
ARTICLES OF INCORPORATION OF NORTH DAKOTA CORPORATION
See Exhibit 3.1 to the Registration Statement for Exhibit D to the Transaction
Agreement
20
EXHIBIT E TO TRANSACTION AGREEMENT
BY-LAWS OF NORTH DAKOTA CORPORATION
See Exhibit 3.3 to the Registration Statement for Exhibit E to Transaction
Agreement
21
EXHIBIT F TO TRANSACTION AGREEMENT
CONSENTS AND APPROVALS
Consent of CoBank
Consent of holders of Series A Preferred Stock
Consent of holders of Series B Preferred Stock
22
