Exhibit 2.3
APPENDIX C
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AMENDED AND RESTATED
TRANSACTION AGREEMENT
by and among
MINNESOTA CORN PROCESSORS, INC.
a Minnesota cooperative association
and
MINNESOTA CORN PROCESSORS COLORADO,
a Colorado cooperative association
and
MINNESOTA CORN PROCESSORS, LLC
a Colorado limited liability company
Dated as of May , 1999
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TABLE OF CONTENTS
TRANSACTION AGREEMENT ............................................... C-1
ARTICLE I
OVERVIEW OF THE TRANSACTIONS ........................................ C-1
SECTION 1.01 PURPOSE ................................................ C-1
SECTION 1.02 THE MCP MERGER ......................................... C-1
SECTION 1.03 THE LLC MERGER ......................................... C-1
SECTION 1.04 THE CLOSING ............................................ C-1
SECTION 1.05 ACTIONS AT THE CLOSING ................................. C-1
SECTION 1.06 EFFECTIVE TIME ......................................... C-2
SECTION 1.07 EFFECT OF THE MERGERS .................................. C-2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE ................... C-2
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF THE
COOPERATIVE ........................................................ C-2
SECTION 2.02 ORGANIZATION AND GOOD STANDING ......................... C-3
SECTION 2.03 CAPITAL STOCK AND EQUITY PARTICIPATION UNITS ........... C-3
SECTION 2.04 FINANCIAL STATEMENTS ................................... C-3
SECTION 2.05 UNDISCLOSED LIABILITIES ................................ C-3
SECTION 2.06 COMPLIANCE WITH APPLICABLE LAWS ........................ C-3
SECTION 2.07 LEGAL PROCEEDINGS ...................................... C-3
SECTION 2.08 ABSENCE OF DEFAULTS .................................... C-3
SECTION 2.09 AUTHORIZATION .......................................... C-3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MCP COLORADO ...................... C-4
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF MCP COLORADO ......... C-4
SECTION 3.02 ORGANIZATION AND GOOD STANDING ......................... C-4
SECTION 3.03 CAPITAL STOCK .......................................... C-4
SECTION 3.04 AUTHORIZATION .......................................... C-4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LLC ............................... C-4
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF LLC .................. C-4
SECTION 4.02 ORGANIZATION AND GOOD STANDING ......................... C-4
SECTION 4.03 CAPITAL STOCK .......................................... C-4
SECTION 4.04 AUTHORIZATION .......................................... C-4
ARTICLE V
COVENANTS ........................................................... C-5
SECTION 5.01 REASONABLE BEST EFFORTS ................................ C-5
SECTION 5.02 CONDUCT OF BUSINESS .................................... C-5
SECTION 5.03 FORBEARANCES ........................................... C-5
SECTION 5.04 MEETINGS OF MEMBERS .................................... C-5
SECTION 5.05 ACCESS ................................................. C-5
SECTION 5.06 NOTICE OF DEVELOPMENTS ................................. C-6
SECTION 5.07 EXCLUSIVITY ............................................ C-6
SECTION 5.08 REGISTRATION STATEMENT ................................. C-6
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ARTICLE VI
CONDITIONS PRECEDENT ............................................... C-6
SECTION 6.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY
TO THE MCP MERGER ................................................. C-6
SECTION 6.02 CONDITIONS TO OBLIGATIONS OF EACH PARTY
TO THE LLC MERGER ................................................. C-7
SECTION 6.03 ADDITIONAL CONDITIONS TO OBLIGATION OF
THE COOPERATIVE ................................................... C-7
SECTION 6.04 ADDITIONAL CONDITIONS TO OBLIGATION OF
MCP COLORADO ...................................................... C-8
SECTION 6.05 ADDITIONAL CONDITIONS TO OBLIGATION OF LLC ............ C-8
ARTICLE VII
POST CLOSING AGREEMENTS ............................................ C-8
SECTION 7.01 EMPLOYEE BENEFIT PLANS ................................ C-8
SECTION 7.02 PATRONAGE DISTRIBUTIONS ............................... C-9
SECTION 7.03 1996 LOSS PAYABLE ..................................... C-9
SECTION 7.04 INDEMNIFICATION; DIRECTORS' AND OFFICERS'
INSURANCE ......................................................... C-9
ARTICLE VIII
TERMINATION ........................................................ C-9
SECTION 8.01 TERMINATION OF AGREEMENT .............................. C-9
SECTION 8.02 EFFECT OF TERMINATION ................................. C-9
ARTICLE IX
MISCELLANEOUS ...................................................... C-9
SECTION 9.01 WAIVER ................................................ C-9
SECTION 9.02 AMENDMENT ............................................. C-10
SECTION 9.03 BINDING NATURE ........................................ C-10
SECTION 9.04 COUNTERPARTS .......................................... C-10
SECTION 9.05 ENTIRE AGREEMENT ...................................... C-10
SECTION 9.06 NOTICES ............................................... C-10
SECTION 9.07 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES ......... C-10
SECTION 9.08 CAPTIONS .............................................. C-10
EXHIBITS
Exhibit A -- MCP Merger Agreement ..................................... C-12
Exhibit B -- LLC Merger Agreement ..................................... C-16
Exhibit C -- Surviving Entity Articles of Organization ................
Exhibit D -- Surviving Entity Operating Agreement .....................
Exhibit E -- List of Consents and Approvals ...........................
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TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT ( "Agreement") is made and entered into as of
May , 1999, by and among MINNESOTA CORN PROCESSORS, INC. a Minnesota
cooperative association (the "Cooperative"), MINNESOTA CORN PROCESSORS
COLORADO, a Colorado cooperative association ("MCP Colorado") and MINNESOTA
CORN PROCESSORS, LLC, a Colorado limited liability company ("LLC").
WHEREAS, the Cooperative, MCP Colorado, and LLC are each organized to
benefit and serve their respective members and patrons; and
WHEREAS, the parties believe the interests of their respective members
will best be benefitted and served if the parties reorganize their business
operations and corporate structure whereby: (i) the Cooperative will merge into
MCP Colorado, with MCP Colorado being the surviving entity (the "MCP Merger");
and (ii) MCP Colorado will then merge into LLC, with LLC being the surviving
entity (the "LLC Merger"); the MCP Merger and the LLC 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 corporate structure of the Cooperative from a
Minnesota cooperative association into a Colorado limited liability company.
This reorganization will be accomplished through a two-step merger process.
First, the Cooperative shall merge with and into MCP Colorado. Second, MCP
Colorado will merge with and into LLC. The MCP Merger and the LLC Merger are
separate and distinct transactions, and each Merger shall be individually
consummated. Although the Mergers are separate transactions, consummation of
the LLC Merger is contingent upon consummation of the MCP Merger and
consummation of the MCP Merger is contingent upon satisfaction of all
conditions precedent for consummation of the LLC Merger. Upon completion of
both Mergers, the Cooperative and MCP Colorado will cease to exist and LLC will
continue as the sole surviving entity.
SECTION 1.02 THE MCP MERGER. Subject to the terms and conditions set forth
in this Agreement and the Plan of Merger attached hereto as Exhibit A (the "MCP
Merger Agreement), the Cooperative will merge with and into MCP Colorado. MCP
Colorado shall be the surviving entity (the "Surviving Colorado Entity").
Immediately after completion of the MCP Merger and without any further action
by its board of directors and members, MCP Colorado, as the Surviving Colorado
Entity, shall merge with and into LLC as described in Section 1.03 hereof.
SECTION 1.03 THE LLC MERGER. Subject to the terms and conditions set forth
in this Agreement and the Plan of Merger attached hereto as Exhibit B (the "LLC
Merger Agreement), MCP Colorado will merge with and into LLC. LLC shall be the
surviving entity (the "Surviving Entity"), and thereafter shall continue to
exist and operate as Minnesota Corn Processors, LLC under the laws of the State
of Colorado.
SECTION 1.04 THE CLOSING. The closing of the Mergers (the "Closing") will
take place on the date the Effective Time occurs at the offices of Xxxxxx &
Xxxxxxx, LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 or on such
other date and/or at such other place as the parties may agree.
SECTION 1.05 ACTIONS AT THE CLOSING. At the Closing, the parties shall
take the following actions:
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(a) MCP Merger. The Cooperative and MCP Colorado shall (i) execute the MCP
Merger Agreement, (ii) execute and deliver to each other the various
certificates, instruments, and documents referred to in the MCP Merger
Agreement, and (iii) execute and file with the Secretary of State of the States
of Minnesota and Colorado articles of merger as required by the laws of the
States of Minnesota and Colorado to effectuate the merger in accordance with
the terms of the MCP Merger Agreement.
(b) LLC Merger. MCP Colorado and LLC shall (i) execute the LLC Merger
Agreement, (ii) execute and deliver to each other the various certificates,
instruments, and documents referred to in the LLC Merger Agreement, and (iii)
execute and file with the Colorado Secretary of State a statement of merger as
required by the laws of the State of Colorado to effectuate the merger in
accordance with the terms of the LLC Merger Agreement.
SECTION 1.06 EFFECTIVE TIME. Each of the Mergers shall become effective on
the date on which the articles of merger and statement of merger have been duly
filed in the respective offices of the Minnesota and Colorado Secretary of
State as required by law (the "Effective Time"). At any time after the
Effective Time, LLC 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.
SECTION 1.07 EFFECT OF THE MERGERS.
(a) Articles of Organization and Operating Agreement. The Articles of
Organization of LLC attached hereto as Exhibit C and the Operating Agreement of
LLC attached hereto as Exhibit D shall become the Articles of Organization and
the Operating Agreement of the Surviving Entity.
(b) Directors and Officers. The officers and directors of the Cooperative
at the Effective Time shall, from and after the Effective Time, be the
directors and officers of LLC (the "LLC 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 LLC's Operating Agreement. The
terms of the LLC Directors and Officers shall expire on the date each such
director's or officer's term would have expired under Article III Section 1 of
the Cooperative's Amended and Restated Bylaws had the Mergers not occurred. At
the Effective Time, the initial directors and officers of MCP Colorado and LLC
immediately prior to the Effective Time shall resign as directors and officers
of MCP Colorado and LLC, respectively.
(c) Stock and Units of Equity Participation. At the Effective Time,
without any further action by the parties or any of their respective members,
and as further described in the MCP Merger Agreement and the LLC Merger
Agreement:
(i) Each member of the Cooperative prior to the Effective Time shall first
become a member of MCP Colorado as a result of the MCP Merger and then shall
automatically become a member of LLC as the Surviving Entity upon consummation
of the LLC Merger; and
(ii) Upon consummation of the MCP Merger, (1) the stock and units of
equity participation held by each member and each nonmember of the Cooperative
shall be automatically converted into like forms and amounts (on a one-for-one
basis) of stock and units of equity participation of MCP Colorado and (2) all
stock of MCP Colorado owned by the Cooperative shall be canceled without
payment of any consideration therefor. Upon consummation of the LLC Merger, (1)
each unit of equity participation of MCP Colorado shall automatically be
converted into one Class A Unit (for voting members) or one Class B Unit (for
nonvoting members) of LLC and (2) each outstanding share of common stock of MCP
Colorado shall be cancelled.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE. The
Cooperative represents and warrants to MCP Colorado that the statements
contained in this Article II are correct and complete in all material respects
as of the date of this Agreement.
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SECTION 2.02 ORGANIZATION AND GOOD STANDING. The Cooperative is a
cooperative association duly organized and existing under Chapter 308A of the
Minnesota Statutes (as amended, the "Cooperative Act"), is in good standing
under the laws of the State of Minnesota, and has all requisite corporate power
and authority to own its properties and conduct its business as it is presently
being conducted. The 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 Cooperative consists solely of
100,000 shares of common stock, of which 28,317 are issued and outstanding, and
100,000 shares of preferred stock, none of which are issued and outstanding. A
total of 195,563,723 units of equity participation (voting and nonvoting) are
issued and outstanding. The outstanding shares of common stock and units of
equity participation have been duly authorized and are validly issued and
outstanding.
SECTION 2.04 FINANCIAL STATEMENTS. The Cooperative has delivered to MCP
Colorado its audited financial statements as of March 31, 1998, accompanied by
the opinion of Clifton, Gunderson, LLC and its unaudited financial statements
as of September 30, 1998, certified by the Treasurer of the Cooperative. Such
financial statements fairly present the financial position of the 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 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 September 30,
1998, the Cooperative has not incurred a liability that, either individually or
in the aggregate, has had or will have a material adverse effect on the
Cooperative.
SECTION 2.06 COMPLIANCE WITH APPLICABLE LAWS. The Cooperative is in
compliance with all applicable laws and regulations the violation of which
would have a material adverse effect on the Cooperative or on its business as
currently conducted. The 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.
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 Cooperative's knowledge
after reasonable inquiry, is threatened against the Cooperative or any of the
assets which are owned by the Cooperative.
SECTION 2.08 ABSENCE OF DEFAULTS. The Cooperative is not in any material
respect in default under any provision of its Articles of Incorporation or
Bylaws 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 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 E 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 Cooperative has the corporate power and
authority to execute and to perform its obligations under this Agreement
(subject to the approval of its members as required by Section 6.01(a)). This
Agreement and the Transaction have been duly and validly authorized by the
Board of Directors of the Cooperative, and, except for the approval of its
members as required by Section 6.01(a), no other corporate action is required
by the Cooperative in connection with this Agreement or the Transaction. This
Agreement constitutes the valid and binding agreement of the
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Cooperative, enforceable against the 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 MCP COLORADO
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF MCP COLORADO. MCP Colorado
represents and warrants to the Cooperative and LLC 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. MCP Colorado is a cooperative
association duly organized and existing under 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. MCP Colorado 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 MCP Colorado consists of 100,000 shares of common stock, of which one
share is issued and outstanding, and 100,000 shares of preferred stock, of
which none are issued and outstanding.
SECTION 3.04 AUTHORIZATION. MCP Colorado 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 6.01(b) and
6.02(a)). This Agreement and the Transaction have been duly and validly
authorized by the Board of Directors of MCP Colorado, and except for the
approvals of its members and defined members as required by Sections 6.01(b)
and 6.02(a) no other corporate action is required by MCP Colorado in connection
with this Agreement or the Transactions. This Agreement constitutes the valid
and binding agreement of MCP Colorado, enforceable against MCP Colorado 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 LLC
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF LLC. LLC represents and
warrants to MCP Colorado 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. LLC is a limited liability
company duly organized and existing under the Colorado Limited Liability
Company 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. LLC 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 LLC consists of 350,000,000 Class A units and 150,000,000 Class B
units, of which none are issued and outstanding, respectively.
SECTION 4.04 AUTHORIZATION. LLC has the corporate power and authority to
execute and to perform its obligations under this Agreement. This Agreement and
the Transaction have been duly and validly authorized by the Board of Directors
of LLC, and, no other corporate action is required by LLC in connection with
this Agreement or the Transaction. This Agreement constitutes the valid and
binding agreement of LLC, enforceable against LLC 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.
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ARTICLE V
COVENANTS
SECTION 5.01 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 5.02 CONDUCT OF BUSINESS. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated by this
Agreement, each of the Cooperative, MCP Colorado and LLC 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 5.03 FORBEARANCES. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated by this
Agreement, without the prior consent of the other parties to this Agreement, no
party shall:
(a) grant to any person any option or other right to acquire capital stock
or other equity interests, except for allocation of patronage equities in a
manner consistent with past practice;
(b) issue any additional shares or units of capital stock and other equity
interests, except in the ordinary course of business and consistent with past
practice;
(c) enter into, amend or terminate any material contract, lease or
understanding;
(d) amend its Articles of Incorporation or Articles of Organization, as
the case may be, its Bylaws or Operating Agreement, as the case may be, 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;
(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 5.04 MEETINGS OF MEMBERS. Each of the Cooperative and MCP Colorado
will take all steps necessary to call an appropriate meeting of its respective
members, for the purpose of considering and voting on this Agreement and its
respective Merger in accordance with its respective Articles of Incorporation,
Bylaws and applicable law.
SECTION 5.05 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
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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 5.06 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 5.06
shall be deemed to prevent or cure any misrepresentation, breach of warranty,
or breach of covenant.
SECTION 5.07 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 5.08 REGISTRATION STATEMENT. LLC shall promptly prepare and file
with the SEC a Registration Statement on Form S-4 (the "Registration
Statement") in connection with the issuance of Class A and Class B units in the
LLC Merger. The parties shall use their reasonable best efforts to have the
Registration Statement declared effective under the Securities Act of 1933 (the
"Securities Act") as promptly as practicable after such filing, and the parties
shall thereafter mail or deliver the Information Statement Prospectus, which
constitutes a part of the Registration Statement, to their respective members.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE MCP MERGER.
The respective obligations of the Cooperative and MCP Colorado to consummate
the MCP Merger and other matters described in this Agreement, are subject to
the satisfaction or waiver of each of the following conditions on or before the
Effective Time, except that condition (f) must be satisfied and cannot be
waived by either party:
(a) The members of the Cooperative shall have approved this Agreement and
the MCP Merger Agreement, all in accordance with the requirements of applicable
law and the Articles of Incorporation and Bylaws of the Cooperative;
(b) The member of MCP Colorado shall have approved the MCP Merger
Agreement and this Agreement all in accordance with the requirements of
applicable law and the Articles of Incorporation and Bylaws of MCP Colorado;
(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 Exhibits E and 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
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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 member of MCP Colorado shall have approved the LLC Merger
Agreement and this Agreement as set forth in Section 6.02(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 6.02 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE LLC MERGER.
The respective obligations of MCP Colorado and LLC to consummate the LLC Merger
and other matters described in this Agreement, are subject to the satisfaction
or waiver of each of the following conditions on or before the Effective Time,
except that condition (f) must be satisfied and cannot be waived by either
party:
(a) The member of MCP Colorado shall have approved this Agreement and the
LLC Merger Agreement, all in accordance with the requirements of applicable law
and the Articles of Incorporation and Bylaws of MCP Colorado;
(b) 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;
(c) 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 Exhibits E and F attached hereto;
(d) 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;
(e) The members of the Cooperative and the member of MCP Colorado shall
have approved the MCP Merger Agreement and this Agreement as set forth in
Section 6.01(a) and 6.01(b), and the MCP Merger should be consummated; and
(f) 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 6.03 ADDITIONAL CONDITIONS TO OBLIGATION OF THE COOPERATIVE. The
obligation of the Cooperative to consummate the MCP Merger is subject to the
satisfaction or waiver of each of the following additional conditions at or
before the Effective Time:
(a) The representations and warranties of MCP Colorado contained in this
Agreement shall be true and correct in all material respects as of the
Effective Time as though such representations and warranties were made on and
as of the Effective Time, and MCP Colorado shall have performed in all material
respects all obligations required to be performed by it under this Agreement
and the MCP Merger Agreement prior to the Effective Time;
(b) The Cooperative shall have received a certificate, dated as of the
Effective Time, and executed by the President of MCP Colorado, certifying in
such detail as the 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
Cooperative's obligation as of the Effective Time; and
(c) All actions, proceedings and documents necessary to carry out the
Transactions shall be reasonably satisfactory to the Cooperative.
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SECTION 6.04 ADDITIONAL CONDITIONS TO OBLIGATION OF MCP COLORADO. The
obligation of MCP Colorado to consummate the MCP Merger and the LLC Merger is
subject to the satisfaction or waiver of each of the following additional
conditions at or before the Effective Time:
(a) The representations and warranties of the Cooperative and LLC
contained in this Agreement shall be true and correct in all material respects
as of the Effective Time as though such representations and warranties were
made on and as of the Effective Time, and the Cooperative and LLC shall have
performed in all material respects all of their respective obligations required
to be performed by each of them under this Agreement, the MCP Merger Agreement,
and the LLC Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known to
MCP Colorado 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 Cooperative or the Surviving Entity;
(c) MCP Colorado shall have received a certificate, from each of the
Cooperative and LLC dated as of the Effective Time, executed by their
Presidents, certifying in such detail as MCP Colorado 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 MCP Colorado's obligations as of the Effective Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transaction shall be reasonably satisfactory to MCP Colorado.
SECTION 6.05 ADDITIONAL CONDITIONS TO OBLIGATION OF LLC. The obligation of
LLC to consummate the LLC Merger is subject to the satisfaction or waiver of
each of the following additional conditions at or before the Effective Time:
(a) The representations and warranties of MCP Colorado contained in this
Agreement shall be true and correct in all material respects as of the
Effective Time as though such representations and warranties were made on and
as of the Effective Time, and MCP Colorado shall have performed in all material
respects all obligations required to be performed by it under this Agreement
and the LLC Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known to
LLC 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 MCP Colorado;
(c) LLC shall have received a certificate, dated as of the Effective Time,
and executed by the President of MCP Colorado, certifying in such detail as LLC
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 LLC's obligation as of the Effective
Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transactions shall be reasonably satisfactory to LLC.
ARTICLE VII
POST CLOSING AGREEMENTS
SECTION 7.01 EMPLOYEE BENEFIT PLANS. From and after the Effective Time,
the employee benefit plans of the Cooperative in effect as of the date of this
Agreement shall remain in effect with respect to employees of the Cooperative
(or their subsidiaries) covered by such plans at the Closing Date until such
time as LLC shall, subject to applicable law and the terms of such plans, adopt
new benefit plans with respect to employees of LLC. LLC agrees to honor in
accordance with their terms all benefits vested as of the date hereof under the
employee benefit plans of the Cooperative. Nothing in this Section 7.01 shall
be interpreted as preventing LLC from amending, modifying or terminating any
employee benefit plan of the Cooperative or other contracts, arrangements,
commitments or understandings, in accordance with their terms and applicable
law.
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SECTION 7.02 PATRONAGE DISTRIBUTIONS. Following the Effective Time and
within the time period required by the various provisions of the Code, the
Surviving Entity will make patronage distributions to the former members of
each party based on patronage transactions with the respective parties during
each party's respective fiscal year or portion thereof immediately preceding
the Effective Time. The patronage distributions shall be in the form of cash
and equity credits in a manner consistent with the previous patronage
distributions of each party (and in the case of equity credits, in the form of
Class A Units or Class B units of LLC, as appropriate).
SECTION 7.03 1996 LOSS PAYABLE. After the Effective Time, the unpaid
portion of the Cooperative's operating loss for the fiscal year ended September
30, 1996 that was assessed against a unit of equity participation of the
Cooperative shall continue as a lien against a Class A unit received in the LLC
Merger.
SECTION 7.04 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. From and
after the Effective Time, the Surviving Entity shall indemnify each present and
former director, officer, employee or agent of the Cooperative or MCP Colorado
and each person who, while a director or officer of the Cooperative and at the
request of the Cooperative, serves or has served another corporation,
cooperative, partnership, joint venture or any other enterprise as a director,
officer or partner, against any losses, claims, damages, liabilities or
expenses (including legal fees) arising out of or pertaining to matters
existing or occurring at or before the Effective Time, whether asserted or
claimed prior to, at or after the Effective Time, to the fullest extent
permitted by law. The Surviving Entity may obtain insurance coverage against
any such loss, claim or expense, subject to standard exclusions and exceptions
to coverage, but is not obligated to do so.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION OF AGREEMENT. This Agreement shall be terminated
and the Transactions abandoned if at any time prior to the Effective Time:
(a) The members of the Cooperative fail to approve the Merger as required
by Section 6.01(a) or the member of MCP Colorado fails to approve the Merger as
required by Sections 6.01(b) and 6.02(a).
(b) The parties mutually agree in writing to terminate this Agreement; or
(c) Either party to a Merger delivers a written notice to the other, to
the effect that (i) one or more of the conditions to its obligations as set
forth herein cannot be met, (ii) the other party has defaulted in a material
respect under one or more of its covenants or agreements contained herein, or
(iii) any of the representations or warranties of the other party are or have
become materially untrue or incorrect as of the date of such notice, and in any
case such condition or conditions have not been satisfied, such default or
defaults have not been remedied or such representation or warranty has not been
rendered true and correct within thirty (30) days after such notice is mailed;
or
(d) The Closing has not occurred on or before September 1, 1999, or such
later date as the parties may mutually agree upon.
SECTION 8.02 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 8.01 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 5.05 above shall survive any such termination.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 WAIVER. At any time before the Effective Time, any provision
of this Agreement may, to the extent legally allowed, be waived by the party
benefitted by the provision by an agreement in writing between the parties
hereto executed in the same manner as this Agreement, except that after
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approval of the Mergers contemplated by this Agreement by the respective
members of the Cooperative and MCP Colorado, there may not be any waiver of any
provision of this Agreement which would reduce the amount or form of
consideration to be received by members in the Mergers.
SECTION 9.02 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 Cooperative and MCP Colorado, this Agreement may not be amended if it
would violate applicable law or reduce the amount or form of the consideration
to be received by members in the Mergers.
SECTION 9.03 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 9.04 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 9.05 ENTIRE AGREEMENT. This Agreement, the MCP Merger Agreement,
the LLC 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 9.06 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 Cooperative: Minnesota Corn Processors, Inc.
000 Xxxxx Xxxxxxx 00
Xxxxxxxx, XX 00000
Attn: L. Xxx Xxxxxxxx
If to MCP Colorado: Minnesota Corn Processors Colorado
000 Xxxxx Xxxxxxx 00
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
If to LLC: Minnesota Corn Processors, LLC
000 Xxxxx Xxxxxxx 00
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
SECTION 9.07 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the parties contained in Articles II, III and
IV of this Agreement shall form the basis for closing conditions only, shall
not survive the Effective Time and shall not form the basis for any action by
or on behalf of either party or any third party for breach, misrepresentation
or indemnity at any time after the Effective Time.
SECTION 9.08 CAPTIONS. The article and section headings of this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
MINNESOTA CORN PROCESSORS, INC.
By ---------------------------------------
Its ---------------------------------------
MINNESOTA CORN PROCESSORS COLORADO
By ---------------------------------------
Its ---------------------------------------
MINNESOTA CORN PROCESSORS, LLC
By ---------------------------------------
Its ---------------------------------------
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EXHIBIT A
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan") is dated as of May, 1999, and is by and
between MINNESOTA CORN PROCESSORS, INC (the "Cooperative") and MINNESOTA CORN
PROCESSORS COLORADO ("MCP Colorado"), each of which may be referred to herein
as a "Constituent Cooperative" and both of which may be collectively referred
to herein as the "Constituent Cooperatives."
WHEREAS, the Cooperative is a cooperative association organized under
Chapter 308A of Minnesota Statutes, as amended (the "Minnesota Act"); and MCP
Colorado is a cooperative association organized under Title 7 Article 56 of the
Colorado Revised Statutes, as amended (the "Colorado Act"), and is a wholly
owned subsidiary of the Cooperative. The Minnesota Act and the Colorado Act may
be referred to herein collectively as the "Acts."
WHEREAS, the respective Boards of Directors of the Cooperative and MCP
Colorado and the respective members of the Cooperative and MCP Colorado 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. On the Effective Time (as defined in Section 8),
the Cooperative and MCP Colorado shall combine through merger (the "MCP
Merger") in accordance with the applicable provisions of the Acts; and MCP
Colorado shall be the surviving cooperative and shall continue to exist as a
Colorado cooperative association by virtue of, and shall be governed by, the
Colorado Act.
SECTION 2. ARTICLES OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the MCP Merger,
the articles of merger (the "Articles of Merger") and a statement of merger
("Statement of Merger") shall be executed in compliance with Section 308A.801
of the Minnesota Act and Section 7-56-605 of the Colorado Act, respectively.
The Articles of Merger shall be filed with the Secretary of State of the State
of Minnesota 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 Cooperatives or any of their respective
members: (a) MCP Colorado, as the surviving cooperative in the MCP Merger,
shall have all of the rights, privileges, immunities and powers, and shall be
subject to all the duties and liabilities, of a cooperative organized under the
Colorado Act; (b) MCP Colorado, as the surviving cooperative in the MCP Merger,
shall possess all of the rights, privileges, immunities and franchises, of a
public as well as a private nature, of each Constituent Cooperative, 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 Cooperative, shall be deemed to be and
hereby is vested in MCP Colorado, without further act or deed, and the title to
any property, or any interest therein, vested in either Constituent
Cooperative, shall not revert or be in any way impaired by reason of the MCP
Merger; (c) MCP Colorado shall be responsible and liable for all of the
liabilities and obligations of each Constituent Cooperative, and any claim
existing or action or proceeding pending by or against one of the Constituent
Cooperatives may be prosecuted as if the MCP Merger had not taken place or MCP
Colorado may be substituted in its place; (d) neither the rights of creditors
nor any liens upon the property of either of the Constituent Cooperatives shall
be impaired by the MCP Merger; and (e) the MCP Merger shall have any other
effect set forth in the Acts and the Amended and Restated Transaction Agreement
dated May , 1999 between the Cooperative, MCP Colorado and LLC (the
"Transaction Agreement"); all 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 Cooperatives or any of their
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respective members, the Articles of Incorporation of MCP Colorado in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
of MCP Colorado, as the surviving cooperative in the MCP Merger (the "Surviving
Entity Articles"). From and after the Effective Time, without any further
action by the Constituent Cooperatives or any of their respective members, the
Bylaws of MCP Colorado in effect immediately prior to the Effective Time shall
be the Bylaws of MCP Colorado, as the surviving cooperative in the MCP 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 Cooperative in connection with their consideration of the MCP
Merger.
SECTION 5. BOARD OF DIRECTORS AND OFFICERS. From and after the Effective
Time, without any further action by the Constituent Cooperatives or any of
their respective members, each person serving as a director or an officer of
the Cooperative immediately prior to the Effective Time shall become a director
or an officer of MCP Colorado, as the surviving cooperative in the MCP Merger,
(in the case of officers, holding the same office in MCP Colorado as they held
in the Cooperative immediately prior to the Effective Time) to serve in
accordance with the Surviving Entity Bylaws. The initial directors and officers
of MCP Colorado prior to the effective date shall resign their positions as
directors and officers of MCP Colorado as of the effective date.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION AND CONTINUATION OF
CAPITAL STOCK, NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS.
On the Effective Time, the manner and basis of exchanging and continuing the
shares of capital stock, non-stock equity interests, units of equity
participation, non-voting units of equity participation, patronage equity
interests (including all entitlements to patronage refunds), any other
allocated equity interests, and unallocated and capital reserves of the
Cooperative and MCP Colorado (all such interests referred to herein as
"Cooperative Equity Interests" or "MCP Colorado Equity Interests",
respectively), and membership interests in the Cooperative and MCP Colorado,
for equal Equity Interests and membership interests in MCP Colorado, shall be
as follows:
(a) EXCHANGE AND CONTINUATION OF COOPERATIVE MEMBERSHIPS. As of the
Effective Time, without any further action by the Constituent Cooperatives
or any of their respective members, each holder of common stock of the
Cooperative shall become and be a member of MCP Colorado, to the extent
they are eligible for membership under the Surviving Entity Articles and
the Surviving Entity Bylaws, in such class and with such incidents of
membership as are set forth in the Surviving Entity Articles and the
Surviving Entity Bylaws.
(b) MCP COLORADO MEMBERSHIPS. As of the Effective Time, without any
further action by the Constituent Cooperatives or any of their respective
members, the Cooperative, as the sole member of MCP Colorado, shall cease
to exist by operation of the merger and shall cease to be a member of MCP
Colorado.
(c) EXCHANGE AND CONTINUATION OF COOPERATIVE EQUITY INTERESTS. As of the
Effective Time, without any further action by the Constituent Cooperatives
or any of their respective members, all Equity Interests standing on the
books of the Cooperative immediately prior to the Effective Time shall be
determined and exchanged for equal Equity Interests in MCP Colorado AT ITS
STATED DOLLAR AMOUNT ON A DOLLAR-FOR-DOLLAR BASIS, including as follows:
i. Common Stock. Each share of common stock of the Cooperative 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
of MCP Colorado at a par value of $50.00 per share.
ii. Preferred Stock. Each share of Preferred stock of the Cooperative
issued and outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one (1) share of
Preferred Stock of MCP Colorado at a par value of $50.00 per share.
iii. Patronage Equity Interests and Units of Equity Participation. All
patronage refunds (qualified and nonqualified), units of equity
participation and non-voting units of equity participation and any
other allocated or to be allocated patronage equity interests
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(including all entitlements thereto) standing on the books of the
Cooperative immediately prior to the Effective Time (which are not
otherwise evidenced by capital stock) shall be exchanged for equal
patronage refunds, units of equity participation and non-voting units
of equity participation, and allocated or to be allocated equity
interests, entitlements to patronage refunds, or other equal
patronage equity interests on the books of MCP Colorado, at their
stated dollar amount on a dollar-for-dollar basis, and in such
denominations or other designations or series so as to preserve the
year of issue (as MCP Colorado deems necessary) and other terms and
conditions of the original issuance; and each unit of equity
participation so exchanged shall be subject on the books of MCP
Colorado to the same obligation for loss allocation as standing on
the books of the Cooperative immediately prior to the Effective Time.
iv. Deferred Patronage and Unallocated Reserve. All deferred patronage
(not exchanged above), unallocated reserves, and any other unallocated
equity interests standing on the books of the Cooperative immediately
prior to the Effective Time shall be exchanged and credited for equal
deferred patronage, unallocated reserves or other equal unallocated
equity interests on the books of MCP Colorado, at their stated dollar
amount on a dollar-for-dollar basis, and in such denominations or
other designations or series so as to preserve the year of issue (if
applicable and as MCP Colorado deems necessary) and other terms and
conditions of the original issuance (if applicable).
v. Net Effect. The net effect of the exchange of Cooperative Equity
Interests for equal Equity Interests in MCP Colorado shall be that the
holders of Cooperative Equity Interests standing on the books of the
Cooperative immediately prior to the Effective Time shall hold and
will have equal Equity Interests in MCP Colorado immediately following
the Effective Time, in terms of stated dollar amount on a
dollar-for-dollar basis, year of issue (as determined necessary), loss
allocation obligations and any other rights and preferences, and that
the deferred patronage, unallocated reserves and other unallocated
Equity Interests of the Cooperative, as standing on its books
immediately prior to the Effective Time, shall be exchanged and
credited for an equal Equity Interest in MCP Colorado immediately
following the Effective Time, in terms of stated dollar amount on a
dollar-for-dollar basis and other rights and preferences.
(d) MCP COLORADO EQUITY INTERESTS. Prior to the Effective Time, the
Cooperative is the sole member of MCP Colorado and all equity interest of
any and every nature in MCP Colorado is owned by and held in the name of
the Cooperative. Upon the Effective Time, the Cooperative, as the merging
entity, shall merge with and into MCP Colorado and shall cease to exist in
its own right. All Equity Interests of any and every nature standing on
the books of MCP Colorado and held by the Cooperative immediately prior to
the Effective Time shall be canceled.
(e) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Membership in MCP
Colorado and all Equity Interests in MCP Colorado whether issued or
credited in exchange for Cooperative Equity Interests or continued with
respect to MCP Colorado Equity Interests as described above, shall in all
instances be governed by the provisions of the Surviving Entity Articles
and the Surviving Entity Bylaws.
(f) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of Cooperative
Equity Interests and each holder of MCP Colorado Equity Interests shall
take such action or cause to be taken such action as MCP Colorado 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 MCP Colorado, or its successors or assigns, the
Cooperative 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 MCP Colorado, or its successors or assigns, may
deem necessary or desirable in order to vest in and confirm to MCP Colorado, or
its successors or assigns, title
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to and possession of all of the properties, rights, privileges, powers and
franchises referred to in Section 3 of this Plan, and otherwise to carry out
the intent and purposes of this Plan. If MCP Colorado 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 Cooperative or MCP Colorado vested in
MCP Colorado pursuant to this Plan, the officers of MCP Colorado or its
successors or assigns, are hereby specifically authorized as attorneys-in-fact
of each the Cooperative and MCP Colorado (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 Cooperative and MCP Colorado, or otherwise, as such officer
shall deem necessary or appropriate to accomplish such purpose.
SECTION 8. EFFECTIVE TIME. The MCP Merger shall become effective at the
later of the filing of the Articles of Merger with the Secretary of State of
Minnesota 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 Cooperative and MCP Colorado, as of the date
first set forth above.
MINNESOTA CORN PROCESSORS, INC.
By ---------------------------------------
Its ---------------------------------------
MINNESOTA CORN PROCESSORS COLORADO
By ---------------------------------------
Its ---------------------------------------
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EXHIBIT B
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan") is dated as of , 1999, and is by and
between MINNESOTA CORN PROCESSORS COLORADO, ("MCP Colorado") and MINNESOTA CORN
PROCESSORS, LLC ("LLC"), each of which may be referred to herein as a
"Constituent Entity" and both of which may be collectively referred to herein
as the "Constituent Entities".
WHEREAS, MCP Colorado is a cooperative association organized under Title
7, Article 56 of the Colorado Revised Statutes as amended (the "Colorado Act"),
and LLC is a limited liability company organized under Title 7 Article 80 of
the Colorado Revised Statutes as amended (the "LLC Act"), and a wholly owned
subsidiary of MCP Colorado as a result of a merger of Minnesota Corn
Processors, Inc., a Minnesota cooperative association (the "Cooperative"), with
and into MCP Colorado, effective on the date hereof. The LLC Act and the
Colorado Act may be referred to herein collectively as the "Acts"; and
WHEREAS, the Board of Directors and members of MCP Colorado have approved
and adopted this Plan and the transactions contemplated hereby in the manner
required by its Articles of Incorporation and Bylaws, the Colorado Act and
other applicable provisions of Colorado law including specifically the Colorado
Corporations and Associations Act found at Title 7, Article 90 of the Colorado
Revised Statues ("CCA Act"); and
WHEREAS, the Board of Directors and members of LLC have approved and
adopted this Plan and the transactions contemplated hereby in the manner
required by its Articles of Organization and Operating Agreement, the LLC Act
and the CCA Act; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements of the parties contained herein, the parties hereto agree as
follows:
SECTION 1. THE MERGER. On the Effective Time (as defined in Section 8),
MCP Colorado and LLC shall combine through merger (the "LLC Merger") in
accordance with the applicable provisions of the Acts and the CCA Act, and LLC
shall be the surviving entity and shall continue to exist as a Colorado limited
liability company with principal offices at 000 Xxxxx Xxxxxxx 00, Xxxxxxxx, XX
00000-0000, by virtue of, and shall be governed by, the LLC Act.
SECTION 2. STATEMENT OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the LLC Merger,
a statement of merger (the "Statement of Merger") shall be executed in
accordance with all legal requirements. The Statement of Merger shall be filed
with the Secretary of State of the State of Colorado or as otherwise required
by law.
SECTION 3. EFFECT OF MERGER. From and after the Effective Time, without
any further action by the Constituent Entities or any of their respective
members: (a) LLC, as the surviving entity in the LLC Merger, shall have all of
the rights, privileges, immunities and powers, and shall be subject to all the
duties and liabilities, of a limited liability company organized under the LLC
Act; (b) LLC, as the surviving entity in the LLC Merger, shall possess all of
the rights, privileges, immunities and franchises, of a public as well as a
private nature, of each Constituent Entity, and all property, real, personal
and mixed, and all debts due on whatever account, including all choices in
action, and each and every other interest of or belonging to or due to each
Constituent Entity, shall be deemed to be and hereby is vested in LLC, without
further act or deed, and the title to any property, or any interest therein,
vested in either Constituent Entity, shall not revert or be in any way impaired
by reason of the LLC Merger; (c) LLC shall be responsible and liable for all of
the liabilities and obligations of each Constituent Entity, and any claim
existing or action or proceeding pending by or against one of the Constituent
Entities may be prosecuted as if the LLC Merger had not taken place or LLC may
be substituted in its place; (d) neither the rights of creditors nor any liens
upon the property of either of the Constituent Entity shall be impaired by the
LLC Merger; and (e) the LLC Merger shall have any other effect set forth in the
Acts, the CCA Act, and the Amended and Restated Transaction Agreement dated as
of May , 1999 between the Cooperative, MCP Colorado and LLC (the "Transaction
Agreement"); all with the effect and to the extent provided in the applicable
provisions of Colorado law.
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SECTION 4. ARTICLES OF ORGANIZATION; OPERATING AGREEMENT. From and after
the Effective Time, pursuant to the Statement of Merger and without any further
action by the Constituent Entities or any of their respective members, the
Articles of Organization of LLC in effect immediately prior to the Effective
Time shall be the Articles of Organization of LLC, as the surviving entity in
the LLC Merger (the "Surviving Entity Articles"). From and after the Effective
Time, without any further action by the Constituent Entities or any of their
respective members, the Amended and Restated Operating Agreement of LLC as in
effect immediately prior to the Effective Time shall be the Operating Agreement
of LLC, as the surviving entity in the LLC Merger (the "Surviving Entity
Operating Agreement"). A copy of the Surviving Entity Articles of Organization
and Operating Agreement was provided to the respective members of each
Constituent Cooperative in connection with their consideration of the LLC
Merger.
SECTION 5. BOARD OF DIRECTORS. From and after the Effective Time, without
any further action by the Constituent Cooperatives or any of their respective
members, each person serving as a director or an officer of MCP Colorado
immediately prior to the Effective Time shall be a director or an officer of
LLC, as the surviving entity in the LLC Merger, (in the case of officers,
holding the same office in LLC as they held in MCP Colorado immediately prior
to the Effective Time) to serve in accordance with the Surviving Entity
Operating Agreement. The initial directors and officers of LLC prior to the
effective date shall resign their positions as directors and officers of LLC as
of the effective date.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION OF CAPITAL STOCK,
NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS. On the Effective
Time, the manner and basis of exchanging or converting the shares of capital
stock, non-stock equity interests, units of equity participation, non-voting
units of equity participation, patronage equity interests (including all
entitlements to patronage refunds), any other allocated equity interests, and
unallocated and capital reserves of MCP Colorado and LLC (all such interests
referred to herein as "MCP Colorado Equity Interests" or "LLC Equity
Interests", respectively), and membership interests in MCP Colorado and LLC,
for proportionally equivalent Equity Interests and equal membership interests
in LLC, shall be as follows:
(g) EXCHANGE AND CONTINUATION OF MCP COLORADO MEMBERSHIPS. As of the
Effective Time, without any further action by the Constituent Entities or
any of their respective members, (i) each member and holder of Units of
Participation of MCP Colorado shall become and be a Class A member of LLC,
to the extent they are eligible for membership under the Surviving Entity
Articles and the Surviving Entity Operating Agreement, and (ii) each
holder of non-voting Units of Participation of MCP Colorado shall become
and be a Class B member of LLC. Class A and Class B members shall have
such incidents of membership as are set forth in the Surviving Entity
Articles and the Surviving Entity Operating Agreement.
(h) LLC MEMBERSHIP. As of the Effective Time, without any further action
by the Constituent Entities or any of their respective members, MCP
Colorado, as the sole member of LLC, shall cease to exist by operation of
the merger and shall also cease to be a member of LLC.
(i) EXCHANGE AND CONTINUATION OF MCP COLORADO EQUITY INTERESTS. As of
the Effective Time, without any further action by the Constituent Entities
or any of their respective members, all MCP Colorado Equity Interests
standing on the books of` MCP Colorado immediately after the consummation
of the merger of The Cooperative with and into MCP Colorado, and
immediately prior to the Effective Time shall be determined and exchanged
for proportionally equivalent Equity Interests in LLC as follows:
vi. Voting Units of Equity Participation. Each voting unit of equity
participation standing on the books of MCP Colorado and held by
members of MCP Colorado ("Member Equity") immediately prior to the
Effective Time shall cease to be outstanding and shall be exchanged
for one Class A Unit of LLC; and each Class A Unit of LLC so exchanged
shall be subject on the books of LLC to the same obligation for loss
allocation as standing on the books of MCP Colorado immediately prior
to the Effective Time.
vii. Non-Voting Units of Equity Participation. Each non-voting unit of
equity participation standing on the books of MCP Colorado and held by
non-members of MCP Colorado
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("Non-Member Equity") immediately prior to the Effective Time shall
cease to be outstanding and shall be exchanged for one Class B Unit of
LLC.
viii. Common Stock. All shares of common stock standing on the books of MCP
Colorado immediately prior to the Effective Time shall be cancelled
and shall cease to exist.
ix. Nonqualified Patronage Refunds. All nonqualified patronage refunds
standing on the books of MCP Colorado immediately prior to the
Effective Time shall be converted into nonvoting financial interests
of LLC having the same stated dollar amount, years of issue (as LLC
deems necessary) and other terms and conditions as applicable to such
nonqualified patronage refunds immediately prior to the Effective
Time.
(j) LLC EQUITY INTERESTS. Prior to the Effective Time, MCP Colorado is
the sole member of LLC and all equity interest of any and every nature in
LLC is owned by and held in the name of MCP Colorado. Upon the Effective
Time, MCP Colorado, as the merging entity, shall merge with and into LLC
and shall cease to exist in its own right. All Equity Interests of any and
every nature standing on the books of LLC immediately prior to the
Effective Time shall be canceled.
(k) SURVIVING ENTITY ARTICLES AND OPERATING AGREEMENT TO GOVERN.
Membership in LLC and all Equity Interests in LLC issued or credited in
exchange for MCP Colorado Equity Interests and continued with respect to
LLC Equity as described above, shall in all instances be governed by the
provisions of the Surviving Entity Articles and the Surviving Entity
Operating Agreement.
(l) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of MCP Colorado
Equity Interests and each holder of LLC Equity Interests shall take such
action or cause to be taken such action as LLC may reasonably deem
necessary or appropriate to effect the exchange and continuation of the
equity interests hereunder, including without limitation the execution and
delivery of any stock certificates or other evidences of equity being
exchanged or continued hereunder.
SECTION 7. FURTHER ASSURANCES. From time to time and after the Effective
Time, as and when requested by LLC, or its successors or assigns, MCP Colorado
shall execute and deliver or cause to be executed and delivered all such deeds
and other instruments, and shall take or cause to be taken all such further
action or actions, as LLC, or its successors or assigns, may deem necessary or
desirable in order to vest in and confirm to LLC, or its successors or assigns,
title to and possession of all of the properties, rights, privileges, powers
and franchises referred to in Section 3 of this Plan, and otherwise to carry
out the intent and purposes of this Plan. If LLC shall at any time deem that
any further assignments or assurances or any other acts are necessary or
desirable to vest, perfect or confirm of record or otherwise the title to any
property or to enforce any claims of MCP Colorado or LLC vested in LLC pursuant
to this Plan, the officers of LLC or its successors or assigns, are hereby
specifically authorized as attorneys-in-fact of each MCP Colorado and LLC
(which appointment is irrevocable and coupled with an interest), to execute and
deliver any and all such deeds, assignments and assurances and to do all such
other acts in the name and on behalf of each MCP Colorado and LLC, or
otherwise, as such officer shall deem necessary or appropriate to accomplish
such purpose.
SECTION 8. EFFECTIVE DATE. The LLC Merger shall become effective at the
time of filing of the Statement of Merger with the Secretary of State of
Colorado (the "Effective Time").
SECTION 9. GOVERNING LAW. This Plan shall be governed by and construed in
accordance with the laws of the State of Colorado.
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IN WITNESS WHEREOF, this Plan has been agreed to and executed by the duly
authorized representatives of MCP Colorado and LLC, as of the date first set
forth above.
MINNESOTA CORN PROCESSORS COLORADO
By ---------------------------------------
Its ---------------------------------------
MINNESOTA CORN PROCESSORS, LLC
By ---------------------------------------
Its ---------------------------------------
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