EXHIBIT 10-13
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is made as of this
___ day of ___________, 1996, by and between RDO Equipment Co., a North Dakota
corporation ("RDO Equipment-North Dakota"), and RDO Equipment Co. - Delaware, a
Delaware corporation ("RDO Equipment-Delaware"). RDO Equipment-North Dakota and
RDO Equipment-Delaware are sometimes referred to hereinafter as the "Constituent
Corporations."
WHEREAS, the authorized capital stock of RDO Equipment-North Dakota
consists of 250,000 shares of Common Stock, par value $1.00 per share, of which
__________ shares are issued and outstanding, and
WHEREAS, the authorized capital stock of RDO Equipment-Delaware consists
of __________ shares of Class A Common Stock, par value $.01 per share, of which
__________ shares are issued and outstanding, and _______________ shares of
Class B Common Stock, of which no shares are issued and outstanding, and
WHEREAS, the directors of the Constituent Corporations deem it advisable
and to the advantage of such corporations that RDO Equipment-North Dakota merge
with and into RDO Equipment-Delaware upon the terms and conditions herein
provided, and
WHEREAS, the parties intend that the merger contemplated hereby shall be
a tax-free reorganization under Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended;
NOW, THEREFORE, the parties hereby adopt the plan of merger encompassed
by this Merger Agreement and, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, do hereby agree that RDO
Equipment-North Dakota shall merge with and into RDO Equipment-Delaware on the
following terms and conditions:
ARTICLE
1.
TERMS AND CONDITIONS OF THE MERGER
1.1 MERGER. As soon as practicable following the fulfillment (or waiver, to
the extent permitted herein) of the conditions specified herein, RDO
Equipment-North Dakota shall be merged with and into RDO Equipment-
Delaware (the "Merger"), and RDO Equipment-Delaware shall survive the
Merger.
1.2 EFFECTIVE DATE. The Merger shall be effective upon the filing of this
Merger Agreement, together with appropriate articles of merger or a
certificate of merger with respect thereto, with the Secretaries of State
of the States of North Dakota and Delaware, as provided by the North
Dakota Business Corporation Act and the Delaware General Corporation Law
(the "Effective Date").
1.3 SURVIVING CORPORATION. On the Effective Date, RDO Equipment-Delaware, as
the surviving corporation (the "Surviving Corporation"), shall continue
its corporate existence under the laws of the State of Delaware and shall
succeed to all of the rights, privileges, powers and property of RDO
Equipment-North Dakota in the manner of and as more fully set forth in
Section 259 of the
Delaware General Corporation Law, and the separate corporate existence of
RDO Equipment-North Dakota, except insofar as it may be continued by
operation of law, shall cease and be terminated.
1.4. CAPITAL STOCK OF RDO EQUIPMENT-NORTH DAKOTA AND RDO EQUIPMENT-DELAWARE.
On the Effective Date, by virtue of the Merger and without any further
action on the part of the Constituent Corporations or their shareholders:
(a) Each share of Common Stock of RDO Equipment-North Dakota issued and
outstanding immediately prior thereto shall be changed and converted
into _________ of a fully paid and nonassessable share of the Class
A Common Stock of RDO Equipment-Delaware; and
(b) Each share of Class A Common Stock of RDO Equipment-Delaware issued
and outstanding immediately prior thereto (_________ shares held by
RDO Equipment-North Dakota) shall be canceled and returned to the
status of authorized but unissued shares.
1.5. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates that, prior to that time, represented shares of
the capital stock of RDO Equipment-North Dakota shall be deemed for all
purposes to evidence ownership and to represent the number of shares of
the capital stock of RDO Equipment-Delaware in accordance with Section
1.4 above and shall be so registered on the books and records of RDO
Equipment-Delaware or its transfer agent. The registered owner of any
such outstanding stock certificate shall, until such certificate shall
have been surrendered for transfer or conversion or otherwise accounted
for to RDO Equipment-Delaware or its transfer agent, have and be entitled
to exercise any voting and other rights with respect to, and to receive
any dividend or other distributions upon, the shares of RDO Equipment-
Delaware evidenced by such outstanding certificate as above provided.
After the Effective Date, whenever certificates which formerly
represented shares of RDO Equipment-North Dakota are presented for
transfer or conversion, the Surviving Corporation will cause to be issued
in respect thereof a certificate or certificates representing the
appropriate number of shares of the capital stock of RDO Equipment-
Delaware in accordance with Section 1.4 above.
1.6. FRACTIONAL SHARES. No fractional shares shall be issued upon conversion
of shares of capital stock of RDO Equipment-North Dakota into shares of
capital stock of RDO Equipment-Delaware. If any fractional share of
capital stock would, except for the provisions of this Section 1.6, be
delivered upon such conversion, the Surviving Corporation, in lieu of
delivering such fractional share, shall pay to the holder surrendering a
certificate for conversion an amount in cash equal to the amount of such
fractional share multiplied by $____________.
1.7. STOCK OPTIONS AND WARRANTS. Upon the Effective Date, each outstanding
option or warrant to purchase capital stock of RDO Equipment-North Dakota
shall, by virtue of the Merger and without any action on the part of the
holder thereof, become an option or warrant to purchase Class A Common
Stock of RDO Equipment-Delaware, and each option or warrant shall entitle
the holder to purchase from RDO Equipment-Delaware the number of shares
of Class A Common Stock of RDO Equipment-Delaware that equals the number
of shares of capital stock of the same class and series of RDO Equipment-
North Dakota subject to such option or warrant immediately prior to the
Effective Date multiplied by ______ (rounded down to the nearest full
number of shares), at an exercise price per share of the Class A Common
Stock of RDO
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Equipment-Delaware equal to the exercise price per share then specified
with respect to such option or warrant divided by _______ (rounded to the
nearest full cent).
1.8. OTHER EMPLOYEE BENEFIT PLANS. RDO Equipment-Delaware will assume all of
the obligations of RDO Equipment-North Dakota under any and all employee
benefit plans in effect as of the Effective Date or with respect to which
employee rights or accrued benefits are outstanding as of the Effective
Date.
ARTICLE
2.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1. CERTIFICATE OF INCORPORATION. On the Effective Date, the Certificate of
Incorporation of RDO Equipment-Delaware in effect immediately prior
thereto shall be amended in the following respect, and as amended and in
the form attached hereto as Appendix A, shall be and may be certified as
the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
Article I shall be amended to read as follows:
The name of this corporation is RDO Equipment Co. (the
"Corporation").
2.2 BYLAWS. The Bylaws of RDO Equipment-Delaware in effect on the Effective
Date shall continue to be the Bylaws of the Surviving Corporation without
change or amendment until further amended in accordance with the
provisions thereof and applicable law.
2.3. DIRECTORS. The directors of RDO Equipment-Delaware immediately preceding
the Effective Date shall continue to be the directors of the Surviving
Corporation on and after the Effective Date to serve until their
successors are duly elected and qualified.
2.4. OFFICERS. The officers of RDO Equipment-Delaware immediately preceding
the Effective Date shall continue to be the officers of the Surviving
Corporation on and after the Effective Date to serve until their
successors are duly elected and qualified.
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ARTICLE
3.
MISCELLANEOUS
3.1. FURTHER ASSURANCES. From time to time and when required by the Surviving
Corporation or by its successors and assigns there shall be executed and
delivered on behalf of RDO Equipment-North Dakota such deeds and other
instruments and there shall be taken or caused to be taken by it such
further and other action as shall be appropriate or necessary in order to
vest or perfect in or to confirm of record or otherwise, in the Surviving
Corporation the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority
of RDO Equipment-North Dakota and otherwise to carry out the purposes of
this Merger Agreement, and the officers and directors of the Surviving
Corporation are fully authorized in the name and on behalf of RDO
Equipment-North Dakota or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
3.2. AMENDMENT. At any time before the date of filing, this Merger Agreement
may be amended in any manner (except that any of the principal terms may
not be amended without the approval of the shareholders of RDO Equipment-
North Dakota if such amendment would in the sole discretion of the
respective Boards of Directors of RDO Equipment-North Dakota and RDO
Equipment-Delaware have a material adverse effect on the rights of such
shareholders) as may be determined in the judgment of the respective
Boards of Directors of RDO Equipment-North Dakota and RDO Equipment-
Delaware to be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the purpose
and intent of this Merger Agreement.
3.3 CONDITIONS OF MERGER. The respective obligations of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be
waived by either of the Constituent Corporations in its sole discretion
to the extent permitted by law):
(a) The Merger shall have been approved by the shareholders of
RDO Equipment-North Dakota in accordance with the North Dakota
Business Corporation Act;
(b) RDO Equipment-North Dakota as sole shareholder of RDO Equipment-
Delaware shall have approved the Merger in accordance with the
Delaware General Corporation Law; and
(c) Any and all consents, permits, authorizations, approvals and orders
deemed in the sole discretion of RDO Equipment-North Dakota to be
material to consummation of the Merger shall have been obtained.
3.4. ABANDONMENT OR DEFERRAL. At any time before the date of filing, this
Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of either or both of the Constituent Corporations
notwithstanding the approval of this Merger Agreement by the shareholders
of RDO Equipment-North Dakota and RDO Equipment-Delaware, or the
consummation of the Merger may be deferred for a reasonable period of
time if, in the opinion of the Boards of Directors of the Constituent
Corporations, such action would be in the best interest of such
Corporations. This Merger Agreement may be terminated at any time by the
Board of Directors of RDO Equipment-North Dakota in the event that the
number of shares as to which
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shareholders have properly exercised their rights under Section 10-19.1-
98 of the North Dakota Business Corporation Act is such that it is
impracticable, in the sole judgment and discretion of such Board of
Directors, to proceed with the consummation of the Merger. In the event
of termination of this Merger Agreement, this Merger Agreement shall
become void and of no effect and there shall be no liability on the part
of either Constituent Corporation or its Board of Directors or
shareholders with respect thereto, except that RDO Equipment-North Dakota
shall pay all expenses of the Constituent Corporations incurred in
connection with the Merger.
3.5. COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, the Merger Agreement, having first been duly approved
by the Boards of Directors of RDO Equipment-North Dakota and RDO Equipment-
Delaware, is hereby executed on behalf of each of such corporations and attested
by their respective officers thereunto duly authorized.
ATTEST: RDO EQUIPMENT CO.,
a North Dakota corporation
By By
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Its Its
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ATTEST: RDO EQUIPMENT CO. - DELAWARE,
a Delaware corporation
By By
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Its Its
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