EXHIBIT 2.2
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan") is dated as of January __, 1999, and is by
and between MINNESOTA CORN PROCESSORS COLORADO, ("MCP Colorado") and MINNESOTA
CORN PROCESSORS, LLC ("LLC"), each of which may be referred to herein as a
"Constituent Entity" and both of which may be collectively referred to herein as
the "Constituent Entities".
WHEREAS, MCP Colorado is a cooperative association organized under Title 7,
Article 56 of the Colorado Revised Statutes as amended (the "Colorado Act"), and
LLC is a limited liability company organized under Title 7 Article 80 of the
Colorado Revised Statutes as amended (the "LLC Act"), and a wholly owned
subsidiary of MCP Colorado as a result of a merger of Minnesota Corn Processors,
Inc., a Minnesota cooperative association (the "Cooperative"), with and into MCP
Colorado, effective on the date hereof. The LLC Act and the Colorado Act may be
referred to herein collectively as the "Acts"; and
WHEREAS, the Board of Directors and members of MCP Colorado have approved
and adopted this Plan and the transactions contemplated hereby in the manner
required by its Articles of Incorporation and Bylaws, the Colorado Act and other
applicable provisions of Colorado law including specifically the Colorado
Corporations and Associations Act found at Title 7, Article 90 of the Colorado
Revised Statues ("CCA Act"); and
WHEREAS, the Board of Directors and members of LLC have approved and
adopted this Plan and the transactions contemplated hereby in the manner
required by its Articles of Organization and Operating Agreement, the LLC Act
and the CCA Act; and
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. On the Effective Time (as defined in Section 8), MCP
Colorado and LLC shall combine through merger (the "LLC Merger") in accordance
with the applicable provisions of the Acts and the CCA Act, and LLC shall be the
surviving entity and shall continue to exist as a Colorado limited liability
company with principal offices at 000 Xxxxx Xxxxxxx 00, Xxxxxxxx, XX 00000-0000,
by virtue of, and shall be governed by, the LLC Act.
SECTION 2. STATEMENT OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the LLC Merger,
a statement of merger (the "Statement of Merger") shall be executed in
accordance with all legal requirements. The Statement of Merger shall be filed
with the Secretary of State of the State of Colorado or as otherwise required by
law.
SECTION 3. EFFECT OF MERGER. From and after the Effective Time, without any
further action by the Constituent Entities or any of their respective members:
(A) LLC, as the surviving entity in the LLC Merger, shall have all of the
rights, privileges, immunities and powers, and shall be subject to all the
duties and liabilities, of a limited liability company organized under the LLC
Act; (B) LLC, as the surviving entity in the LLC Merger, shall possess all of
the rights, privileges, immunities and franchises, of a public as well as a
private nature, of each Constituent Entity, and all property, real, personal and
mixed, and all debts due on whatever account, including all choses in action,
and each and every other interest of or belonging to or due to each Constituent
Entity, shall be deemed to be and hereby is vested in LLC, without further act
or deed, and the title to any property, or any interest therein, vested in
either Constituent Entity, shall not revert or be in any way impaired by reason
of the LLC Merger; (C) LLC shall be responsible and liable for all of the
liabilities and obligations of each Constituent Entity, and any claim existing
or action or proceeding pending by or against one of the Constituent Entities
may be prosecuted as if the LLC Merger had not taken place or LLC may be
substituted in its place; (D) neither the rights of creditors nor any liens upon
the property of either of the Constituent Entity shall be impaired by the LLC
Merger; and (E) the LLC Merger shall have any other effect set forth in the
Acts, the CCA Act, and the Transaction Agreement dated January __, 1999 between
the Cooperative, MCP
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Colorado and LLC (the "Transaction Agreement"); all with the effect and to the
extent provided in the applicable provisions of Colorado law.
SECTION 4. ARTICLES OF ORGANIZATION; OPERATING AGREEMENT. From and after
the Effective Time, pursuant to the Statement of Merger and without any further
action by the Constituent Entities or any of their respective members, the
Articles of Organization of LLC in effect immediately prior to the Effective
Time shall be the Articles of Organization of LLC, as the surviving entity in
the LLC Merger (the "Surviving Entity Articles"). From and after the Effective
Time, without any further action by the Constituent Entities or any of their
respective members, the Operating Agreement of LLC as in effect immediately
prior to the Effective Time shall be the Operating Agreement of LLC, as the
surviving entity in the LLC Merger (the "Surviving Entity Operating Agreement").
A copy of the Surviving Entity Articles of Organization and Operating Agreement
was provided to the respective members of each Constituent Cooperative in
connection with their consideration of the LLC Merger.
SECTION 5. BOARD OF DIRECTORS. 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 MCP Colorado
immediately prior to the Effective Time shall be a director or an officer of
LLC, as the surviving entity in the LLC Merger, (in the case of officers,
holding the same office in LLC as they held in MCP Colorado immediately prior to
the Effective Time) to serve in accordance with the Surviving Entity Operating
Agreement. The initial directors and officers of LLC prior to the effective date
shall resign their positions as directors and officers of LLC as of the
effective date.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION OF CAPITAL STOCK,
NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS. On the Effective
Time, the manner and basis of exchanging or converting the shares of capital
stock, non-stock equity interests, units of equity participation, non-voting
units of equity participation, patronage equity interests (including all
entitlements to patronage refunds), any other allocated equity interests, and
unallocated and capital reserves of MCP Colorado and LLC (all such interests
referred to herein as "MCP Colorado Equity Interests" or "LLC Equity Interests",
respectively), and membership interests in MCP Colorado and LLC, for
proportionally equivalent Equity Interests and equal membership interests in
LLC, shall be as follows:
(A) EXCHANGE AND CONTINUATION OF MCP COLORADO MEMBERSHIPS. As of the
Effective Time, without any further action by the Constituent Entities or
any of their respective members, (i) each member and holder of Units of
Participation of MCP Colorado shall become and be a Class A member of LLC,
to the extent they are eligible for membership under the Surviving Entity
Articles and the Surviving Entity Operating Agreement, and (ii) each holder
of non-voting Units of Participation of MCP Colorado shall become and be a
Class B member of LLC. Class A and Class B members shall have such incidents
of membership as are set forth in the Surviving Entity Articles and the
Surviving Entity Operating Agreement.
(B) LLC MEMBERSHIP. As of the Effective Time, without any further action
by the Constituent Entities or any of their respective members, MCP
Colorado, as the sole member of LLC, shall cease to exist by operation of
the merger and shall also cease to be a member of LLC.
(C) EXCHANGE AND CONTINUATION OF MCP COLORADO EQUITY INTERESTS. As of the
Effective Time, without any further action by the Constituent Entities or
any of their respective members, all MCP Colorado Equity Interests standing
on the books of` MCP Colorado immediately after the consummation of the
merger of The Cooperative with and into MCP Colorado, and immediately prior
to the Effective Time shall be determined and exchanged for proportionally
equivalent Equity Interests in LLC as follows:
I. VOTING UNITS OF EQUITY PARTICIPATION. Each voting unit of equity
participation standing on the books of MCP Colorado and held by
members of MCP Colorado ("Member Equity") immediately prior to the
Effective Time shall cease to be outstanding and shall be exchanged
for one Class A Unit of LLC; and each Class A Unit of LLC so
exchanged shall be subject on the books of LLC to the same
obligation for loss allocation as standing on the books of MCP
Colorado immediately prior to the Effective Time.
II. NON-VOTING UNITS OF EQUITY PARTICIPATION. Each non-voting unit of
equity participation standing on the books of MCP Colorado and held
by non-members of MCP Colorado
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("Non-Member Equity") immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one Class B Unit
of LLC.
III. COMMON STOCK. All shares of common stock standing on the books of
MCP Colorado immediately prior to the Effective Time shall be
cancelled and shall cease to exist.
IV. NONQUALIFIED PATRONAGE REFUNDS. All nonqualified patronage refunds
standing on the books of MCP Colorado immediately prior to the
Effective Time shall be converted into nonvoting financial interests
of LLC having the same stated dollar amount, years of issue (as LLC
deems necessary) and other terms and conditions as applicable to
such nonqualified patronage refunds immediately prior to the
Effective Time.
(D) LLC EQUITY INTERESTS. Prior to the Effective Time, MCP Colorado is
the sole member of LLC and all equity interest of any and every nature in
LLC is owned by and held in the name of MCP Colorado. Upon the Effective
Time, MCP Colorado, as the merging entity, shall merge with and into LLC and
shall cease to exist in its own right. All Equity Interests of any and every
nature standing on the books of LLC immediately prior to the Effective Time
shall be cancelled.
(E) SURVIVING ENTITY ARTICLES AND OPERATING AGREEMENT TO GOVERN.
Membership in LLC and all Equity Interests in LLC issued or credited in
exchange for MCP Colorado Equity Interests and continued with respect to LLC
Equity as described above, shall in all instances be governed by the
provisions of the Surviving Entity Articles and the Surviving Entity
Operating Agreement.
(F) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of MCP Colorado
Equity Interests and each holder of LLC Equity Interests shall take such
action or cause to be taken such action as LLC 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 LLC, or its successors or assigns, MCP Colorado
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 LLC, or its successors or assigns, may deem necessary or
desirable in order to vest in and confirm to LLC, 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 LLC 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 MCP Colorado or LLC vested in LLC pursuant to this Plan,
the officers of LLC or its successors or assigns, are hereby specifically
authorized as attorneys-in-fact of each MCP Colorado and LLC (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 MCP Colorado and LLC, or otherwise, as such officer shall
deem necessary or appropriate to accomplish such purpose.
SECTION 8. EFFECTIVE DATE. The LLC Merger shall become effective at the
time of 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.
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IN WITNESS WHEREOF, this Plan has been agreed to and executed by the duly
authorized representatives of MCP Colorado and LLC, as of the date first set
forth above.
MINNESOTA CORN PROCESSORS COLORADO
By: --------------------------------------
Its: -------------------------------------
MINNESOTA CORN PROCESSORS, LLC
By: --------------------------------------
Its: -------------------------------------
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