EXHIBIT 2.4
SECOND AMENDED AND RESTATED
TRANSACTION AGREEMENT
BY AND AMONG
DAKOTA GROWERS PASTA COMPANY,
A NORTH DAKOTA COOPERATIVE ASSOCIATION
AND
DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE,
A COLORADO COOPERATIVE ASSOCIATION
AND
DAKOTA GROWERS CORPORATION,
A COLORADO CORPORATION
AND
DAKOTA GROWERS RESTRUCTURING COMPANY, INC.,
A NORTH DAKOTA CORPORATION
DATED AS OF APRIL 18, 2002
SECOND AMENDED AND RESTATED
TRANSACTION AGREEMENT
THIS SECOND AMENDED AND RESTATED TRANSACTION AGREEMENT ("Agreement") is
made and entered into as of April 18, 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"), and amends and restates that certain Amended and Restated
Transaction Agreement, dated as of March 12, 2002, by and among the North Dakota
Cooperative, the Colorado Cooperative, the Colorado Corporation and the North
Dakota Corporation.
WHEREAS, North Dakota Cooperative, Colorado Cooperative, Colorado
Corporation and North Dakota Corporation entered into a certain Transaction
Agreement, dated as of January 31, 2002, as amended and restated by a certain
Amended and Restated Transaction Agreement, dated as of March 12, 2002, and
desire to amend and restate such Amended and Restated Transaction Agreement
hereby; and
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 Second Amended and Restated 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"). 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 Second Amended and Restated 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"). 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 Second Amended and Restated
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 Restructuring Company, Inc. under the laws of the State of North
Dakota until such time as the name of Dakota Growers Restructuring Company, Inc.
is changed to Dakota Growers Pasta Company, Inc., which shall be effected
shortly after consummation of the North Dakota Corporation Merger.
SECTION 1.05 THE CLOSINGS. The closings of the Colorado
Cooperative Merger, the Colorado Corporation Merger and the North Dakota
Corporation Merger (the "Closings") will take place at the effective time of
the Colorado Cooperative Merger (the Colorado Cooperative Merger Effective
Time"), the effective time of the Colorado Corporation Merger (the "Colorado
Corporation Merger Effective Time") and the effective time of the North
Dakota Corporation Merger(the "North Dakota Corporation Merger Effective
Time"), respectively, at the offices of Xxxxxxxxx & Xxxxxx P.L.L.P., 4200 IDS
Center, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 or on such other
time and/or at such other place as the parties may agree. The Colorado
Cooperative Merger Effective Time shall be before the Colorado Corporation
Merger Effective Time and the North Dakota Corporation Merger Effective Time.
The Colorado Corporation Merger Effective Time shall be after the Colorado
Cooperative Merger Effective Time and before the North Dakota Corporation
Merger Effective Time. The North Dakota Corporation Merger Effective Time
shall be after the Colorado Cooperative Merger Effective Time and the
Colorado Corporation Merger Effective Time.
SECTION 1.06 ACTIONS AT THE CLOSINGS. At the Closings, the parties
shall take the following actions:
(a) Colorado Cooperative Merger. The North Dakota Cooperative and
Colorado Cooperative shall (i) execute and deliver to each
other the various certificates, instruments, and documents
referred to in the Colorado Cooperative Merger Agreement, and
(ii) 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 and deliver to each other the
various certificates, instruments, and documents referred to
in the Colorado Corporation Merger Agreement, and (ii) file
with the Colorado Secretary of State statements 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 and deliver to each
other the various certificates, instruments, and documents
referred to in the North Dakota Corporation Merger Agreement,
and (ii) 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 ACTION FOLLOWING NORTH DAKOTA CORPORATION MERGER
EFFECTIVE TIME. At any time after the North Dakota Corporation Merger
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 Colorado Cooperative Merger Effective Time shall, from
and after the North Dakota Corporation 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 Colorado Cooperative Merger Effective Time, the Colorado
Corporation Merger Effective Time and the North Dakota Corporation Merger
Effective Time, respectively, the initial directors and officers of Colorado
Cooperative, Colorado Corporation and North Dakota Corporation, respectively,
immediately prior to the Colorado Cooperative Merger Effective Time, the
Colorado Corporation Merger Effective Time and the North Dakota Corporation
Merger Effective Time, respectively, shall resign as directors and officers of
Colorado Cooperative, Colorado Corporation and North Dakota Corporation,
respectively.
(c) Stock and Units of Equity Participation. As a result of the
Mergers, 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 immediately
prior to the Colorado Cooperative Merger 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 Non-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 Non-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 January 31, 2002, 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 January 31, 2002,
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 Non-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 (subject to the approval of its shareholder as required by Sections
7.03(b)). 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 Colorado Cooperative Effective Time, the Colorado
Corporation Effective Time and the North Dakota Corporation Effective Time, as
the case may be, 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 Colorado Cooperative Merger Effective Time, the Colorado
Corporation Merger Effective Time and the North Dakota Corporation Merger
Effective Time, as the case may be, 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 and
any necessary amendments thereto (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 Member Vote
Information Statement-Prospectus, which constitutes a part of the Registration
Statement, to their respective members.
ARTICLE VII
CONDITIONS PRECEDENT
8
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 Colorado Cooperative Merger
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 Colorado Corporation Merger
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 North Dakota
Corporation Merger 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 Colorado Cooperative Merger
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 Colorado Cooperative Merger Effective Time as though
such representations and warranties were made on and as of the Colorado
Cooperative Merger 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 Colorado Cooperative Merger Effective
Time;
(b) The North Dakota Cooperative shall have received a certificate,
dated as of the Colorado Cooperative Merger 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
Colorado Cooperative Merger 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 Colorado Cooperative Merger Effective Time and the Colorado
Corporation Merger Effective Time, as the case may be:
(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 Colorado Cooperative Merger
Effective Time and the Colorado Corporation Merger Effective Time, as
the case may be, as though such representations and warranties were
made on and as of the Colorado Cooperative Merger Effective Time and
the Colorado Corporation Merger Effective Time, as the case may be,
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 Colorado Cooperative Merger Effective
Time and the Colorado Corporation Merger Effective Time, as the case
may be;
(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 Colorado Cooperative Merger Effective Time and the Colorado
Corporation Merger Effective Time, as the case may be, 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 Colorado Cooperative Merger Effective Time and
the Colorado Corporation Merger Effective Time, as the case may be;
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 Colorado Corporation Merger Effective Time and the North Dakota
Corporation Merger Effective Time, as the case may be:
(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 Colorado Corporation Merger
Effective Time and the North Dakota Merger Effective Time, as the case
may be, as though such representations and warranties were made on and
as of the Colorado Corporation Merger Effective Time and the North
Dakota Corporation Merger Effective Time, as the case may be, 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 Colorado Corporation Merger Effective Time and
the North Dakota Merger Effective Time, as the case may be;
(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 Colorado Corporation Merger Effective Time and the North Dakota
Corporation Merger Effective Time, as the case may be, 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 Colorado Corporation
Merger Effective Time and the North Dakota Merger Effective Time, as
the case may be; 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 North Dakota Merger
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 North Dakota Merger Effective Time as though such
representations and warranties were made on and as of the North Dakota
Merger 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 North Dakota Merger 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 North Dakota Corporation Merger Effective Time, and executed
by thePresident 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 North
Dakota Corporation Merger 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 North Dakota
Corporation Merger 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 North Dakota Corporation Merger 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 Colorado
Cooperative Merger Effective Time, the Colorado Corporation Merger Effective
Time and the North Dakota Corporation Merger Effective Time, whether asserted or
claimed prior to, at or after the North Dakota Corporation Merger 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 Colorado
Cooperative Merger Effective Time, the Colorado Corporation Merger Effective
Time or the North Dakota Corporation Merger Effective Time, as the case may be:
(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 Closings have 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 Colorado Cooperative
Merger Effective Time, the Colorado Corporation Merger Effective Time and the
North Dakota Corporation Merger Effective Time, as the case may be, any
provision of this Agreement may, to the extent legally allowed, be waived by the
party benefited by the provision, either orally or in writing. The consummation
of the Mergers shall be conclusive evidence that every provision that benefits a
party has been either complied with or waived by such party. After approval of
the Colorado Cooperative Merger and that part of this Agreement relating thereto
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 form of consideration to be received by such 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 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 Restructuring
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 Colorado Cooperative Merger Effective Time, the Colorado
Corporation Merger Effective Time and the North Dakota Corporation Merger
Effective Time, as the case may be, 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 Colorado Cooperative Merger Effective Time,
the Colorado Corporation Merger Effective Time and the North Dakota Corporation
Merger Effective Time, as the case may be.
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
