EXHIBIT 2.3
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 CORPORATION (the
"Colorado Corporation") and DAKOTA GROWERS RESTRUCTURING COMPANY, INC. (the
"North Dakota Corporation"), each of which may be referred to herein as a
"Constituent Corporation" and both of which may be collectively referred to
herein as the "Constituent Corporations."
WHEREAS, the Colorado Corporation is a corporation organized under
Title 7, Article 101 of the Colorado Revised Statutes, as amended (the "Colorado
Corporation Act"), and is a wholly owned subsidiary of Dakota Growers Pasta
Company, a North Dakota Cooperative (the "North Dakota Cooperative"); and North
Dakota Corporation is a corporation organized under Section 10-19.1 of the North
Dakota Business Corporation Act (the "North Dakota Corporation Act"), and is a
wholly owned subsidiary of North Dakota Cooperative. The Colorado Corporation
Act and the North Dakota Corporation Act may be referred to herein collectively
as the "Acts."
WHEREAS, the respective Boards of Directors of the Colorado Corporation
and North Dakota Corporation and the Board of Directors of North Dakota
Cooperative, as the sole shareholder of each of Colorado Corporation and North
Dakota Corporation, 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 Colorado Corporation and North Dakota Corporation shall combine through
merger (the "Dakota Pasta Merger") in accordance with the applicable provisions
of the Acts, and North Dakota Corporation shall be the surviving corporation and
shall continue to exist as a North Dakota corporation by virtue of, and shall be
governed by, the North Dakota Corporation Act.
SECTION 2. ARTICLES OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the Dakota Pasta
Merger, the articles of merger (the "Articles of Merger") and a statement of
merger ("Statement of Merger") shall be executed in compliance with Title 7,
Article 101 of the Colorado Corporation Act and Section 10-19.1 of the North
Dakota Corporation 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 Corporations or any of their respective
shareholders: (a) North Dakota Corporation, as the surviving corporation in the
Dakota Pasta Merger, shall have all of the rights, privileges, immunities and
powers, and shall be subject to all the duties and liabilities, of a corporation
organized under the North Dakota Corporation Act; (b) North Dakota Corporation,
as the surviving corporation in the Dakota Pasta Merger, shall possess all of
the rights, privileges, immunities and franchises, of a public as well as a
private nature, of each Constituent Corporation, 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 Corporation, shall be deemed to be and hereby is vested in North
Dakota Corporation, without further act or deed, and the title to any property,
or any interest therein, vested in either Constituent Corporation, shall not
revert or be in any way impaired by reason of the Dakota Pasta Merger; (c) North
Dakota Corporation shall be responsible and liable for all of the liabilities
and obligations of each Constituent Corporation, and any claim existing or
action or proceeding pending by or against one of the Constituent Corporations
may be prosecuted as if the Dakota Pasta Merger had not taken place or North
Dakota Corporation may be substituted in its place; (d) neither the rights of
creditors nor any liens upon the property of either of the Constituent
Corporations shall be impaired by the Dakota Pasta Merger; and (e) the Dakota
Pasta Merger shall have any other effect set forth in the Acts and the
Transaction Agreement dated January 30, 2002 between the Colorado Corporation,
North Dakota Corporation, Dakota Growers Pasta Restructuring Cooperative, a
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Colorado cooperative, and Dakota Growers Pasta Company, a North Dakota
cooperative (the "Transaction Agreement"), in each case with the effect and to
the extent provided in the applicable provisions of the Acts.
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 Corporations or any of their respective members, the
Articles of Incorporation of North Dakota Corporation in effect immediately
prior to the Effective Time shall be the Articles of Incorporation of North
Dakota Corporation, as the surviving corporation in the Dakota Pasta Merger (the
"Surviving Entity Articles"). From and after the Effective Time, without any
further action by the Constituent Corporations or any of their respective
members, the Bylaws of North Dakota Corporation in effect immediately prior to
the Effective Time shall be the Bylaws of North Dakota Corporation, as the
surviving corporation in the Dakota Pasta 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 Corporation in
connection with their consideration of the Dakota Pasta Merger.
SECTION 5. BOARD OF DIRECTORS AND OFFICERS. From and after the
Effective Time, without any further action by the Constituent Corporations or
any of their respective members, each person serving as a director or an officer
of the Colorado Corporation immediately prior to the Effective Time shall become
a director or an officer of North Dakota Corporation, as the surviving
corporation in the Dakota Pasta Merger, (in the case of officers, holding the
same office in North Dakota Corporation as they held in the Colorado Corporation
immediately prior to the Effective Time) to serve in accordance with the
Surviving Entity Bylaws. The initial directors and officers of North Dakota
Corporation prior to the effective date shall resign their positions as
directors and officers of North Dakota Corporation 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 and options to purchase capital stock of the Colorado
Corporation and North Dakota Corporation (all such interests referred to herein
as "Colorado Corporation Equity Interests" or "North Dakota Corporation Equity
Interests", respectively), and ownership interests in the Colorado Corporation
and North Dakota Corporation, for equal Equity Interests and membership
interests in North Dakota Corporation, shall be as follows:
(a) COLORADO CORPORATION SHARES. As of the Effective Time, without any
further action by the Constituent Corporations or any of their
respective members, the Colorado Corporation, as the sole shareholder
of North Dakota Corporation, shall cease to exist by operation of the
merger and shall cease to be a shareholder of North Dakota Corporation.
(b) EXCHANGE AND CONTINUATION OF CORPORATE EQUITY INTERESTS. As of the
Effective Time, without any further action by the Constituent
Corporations or any of their respective members, all Colorado
Corporation Equity Interests standing on the books of the Colorado
Corporation immediately prior to the Effective Time shall be determined
and exchanged for equal North Dakota Corporation Equity Interests at
its stated dollar amount on a dollar-for-dollar basis, including as
follows:
(i) COMMON STOCK. Each share of Common Stock, $.01 par value per
share, of the Colorado Corporation issued and outstanding
immediately prior to the Effective Time shall cease to be
outstanding and shall be exchanged for one (1) share of Common
Stock, $.01 par value per share, of North Dakota Corporation.
(ii) SERIES A 6% REDEEMABLE CUMULATIVE PREFERRED STOCK. Each share
of Series A 6% Redeemable Cumulative Preferred Stock, $100 par
value per share, of the Colorado Corporation 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 North Dakota Corporation.
(iii) 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 Colorado Corporation
issued and outstanding immediately prior to the Effective Time
shall cease to be
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outstanding and shall be exchanged for one (1) share of Series
B 2% Redeemable Non-Cumulative Preferred Stock, $100 par value
per share, of North Dakota Corporation.
(iv) 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 Colorado Corporation
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 North Dakota Corporation.
(v) 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 Colorado Corporation 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 North Dakota Corporation.
(vi) SERIES D NON-CUMULATIVE DELIVERY PREFERRED STOCK. Each share
of Series D Non-Cumulative Delivery Preferred Stock, $.01 par
value per share, of the Colorado Corporation issued and
outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one (1)
share of Series D Non-Cumulative Delivery Preferred Stock,
$.01 par value per share, of North Dakota Corporation.
(vii) NET EFFECT. The net effect of the exchange of Colorado
Corporation Equity Interests for equal North Dakota
Corporation Equity Interests shall be that the holders of
Colorado Corporation Equity Interests standing on the books of
the Colorado Corporation immediately prior to the Effective
Time shall hold and will have equal North Dakota Corporation
Equity Interests immediately following the Effective Time, in
terms of stated dollar amount on a dollar-for-dollar basis and
any other rights and preferences.
(c) NORTH DAKOTA CORPORATION EQUITY INTERESTS. Prior to the Effective
Time, the Colorado Corporation is the sole shareholder of North Dakota
Corporation and all equity interest of any and every nature in North
Dakota Corporation is owned by and held in the name of the Colorado
Corporation. At the Effective Time, the Colorado Corporation, as the
merging entity, shall merge with and into North Dakota Corporation and
shall cease to exist in its own right. All North Dakota Corporation
Equity Interests of any and every nature standing on the books of North
Dakota Corporation and held by the Colorado Corporation immediately
prior to the Effective Time shall be cancelled.
(d) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Ownership in North
Dakota Corporation and all North Dakota Corporation Equity Interests,
whether issued or credited in exchange for Colorado Corporation Equity
Interests or continued with respect to North Dakota Corporation Equity
Interests as described above, shall in all instances be governed by the
provisions of the Surviving Entity Articles and the Surviving Entity
Bylaws.
(e) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of Colorado
Corporation Equity Interests and each holder of North Dakota
Corporation Equity Interests shall take such action or cause to be
taken such action as North Dakota Corporation 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 North Dakota Corporation, or its
successors or assigns, the Colorado Corporation 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 North
Dakota Corporation, or its successors or assigns, may deem necessary or
desirable in order to vest in and confirm to North Dakota Corporation, 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
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Plan, and otherwise to carry out the intent and purposes of this Plan. If North
Dakota Corporation 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 Colorado Corporation or North Dakota Corporation vested in North
Dakota Corporation pursuant to this Plan, the officers of North Dakota
Corporation or its successors or assigns, are hereby specifically authorized as
attorneys-in-fact of each the Colorado Corporation and North Dakota Corporation
(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 Colorado Corporation and North
Dakota Corporation, or otherwise, as such officer shall deem necessary or
appropriate to accomplish such purpose.
SECTION 8. EFFECTIVE TIME. The Dakota Pasta 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 Colorado Corporation and North Dakota
Corporation, as of the date first set forth above.
DAKOTA GROWERS RESTRUCTURING COMPANY, INC.
/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 CORPORATION
/s/ Xxxx X. Xxxxxxxxx, III
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By: Xxxx X. Xxxxxxxxx, III
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Its: Chairman
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