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Exhibit 2(b)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of March
__, 2000, is among XXXX AGRICULTURE COMPANY, a Nebraska corporation and wholly
owned subsidiary of Xxxx Industries, Inc. ("Koch Agriculture"), PM HOLDINGS
CORPORATION, a Delaware corporation and wholly-owned subsidiary of Koch
Agriculture ("PMHC") and PURINA XXXXX, INC., a Delaware corporation and
wholly-owned subsidiary of PMHC ("PMI" and, together with PMHC, the "Constituent
Corporations").
RECITALS
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A. On October 28, 1999, PMHC, PMI and certain of PMI's subsidiaries
filed voluntary petitions for relief under Chapter 11 of the United States
Bankruptcy Code.
B. On January 18, 2000, PMHC, PMI and certain of PMI's subsidiaries
filed a Joint Plan of Reorganization (as the same may be amended in accordance
with the terms thereof, the "Plan") with the United States Bankruptcy Court for
the District of Delaware.
C. In accordance with the Plan, the respective boards of directors and
stockholders of the Constituent Corporations have unanimously determined that it
is advisable to enter into, and by unanimous written consent have approved, the
merger of PMI with and into PMHC on the terms and conditions set forth herein
and in accordance with the applicable provisions of the laws of the State of
Delaware (the "Merger").
D. The Merger is intended to qualify as a tax-free upstream merger
described in Section 368 (a)(1) of the Internal Revenue Code of 1986, as amended
(the "Code").
E. Contemporaneously with, and as a condition to, the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein, including the Merger, Koch Agriculture and PMHC have executed and
delivered the Warrant Purchase Agreement (as defined in the Plan) and the PMI
Merger Escrow Agreement (as defined in the Plan), and Koch Agriculture has
deposited certain funds into escrow in accordance with the terms of the PMI
Merger Escrow Agreement, and Xxxx Industries, Inc. ("Xxxx Industries") and PMHC
have executed and delivered the Koch Tax-Sharing Agreement (as defined in Plan).
TERMS AND CONDITIONS
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, PMI, PMHC and Koch Agriculture agree as follows:
1. MERGER; SURVIVING CORPORATION. At the Effective Time (as defined
below), PMI will be merged with and into PMHC in accordance with the
provisions of Section 251 of the Delaware General Corporation Law (the
"DGCL") and with the effects provided in Sections 259 and 261 of the
DGCL. The separate corporate existence of PMI will
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thereupon cease, and PMHC will be the surviving corporation (the
"Surviving Corporation") in the Merger and will continue its corporate
existence under the laws of the State of Delaware.
2. EFFECTIVE TIME. The Merger will become effective as soon as practicable
following (a) the satisfaction of the conditions thereto under Section
IX.B of the Plan or the due waiver thereof pursuant to Section IX.D of
the Plan and (b) the execution of this Agreement on the date and at the
time (the "Effective Time") that a certificate of merger with respect
to the Merger, containing the provisions required by and executed in
accordance with Section 251 of the DGCL, is accepted for filing by the
Secretary of State of the State of Delaware. On the PMI Merger Date (as
defined in the Plan), Xxxx Industries and the Surviving Corporation
will enter into the Koch Tax Sharing Agreement, and Koch Agriculture
and the Surviving Corporation will enter into the Warrant Purchase
Agreement and the PMI Merger Escrow Agreement. Notwithstanding the
foregoing, the Merger shall not become effective and the PMI Merger
Date (as defined in the Plan) shall not occur if, in the reasonable
judgment of PMI and the Creditors' Committee (as defined in the Plan),
Allowed Claims (as defined in the Plan) exist against PMHC which would
have a material adverse effect on PMI or its creditors if the Merger
were consummated; provided, however, that Claims against PMHC under the
Prepetition Credit Facility and the DIP Credit Agreement or in respect
of Taxes (each as defined in the Plan) shall not be deemed to have a
material adverse effect on PMI or its creditors.
3. CERTIFICATE OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS.
3.1 Certificate of Incorporation. The Certificate of Incorporation
of the Surviving Corporation from and after the Effective
Time, until duly amended in accordance with the terms thereof
and in accordance with the DGCL, will be the Certificate of
Incorporation of PMHC as in effect immediately prior to the
Effective Time; provided, however, that PMHC's name will be
changed to "Purina Xxxxx, Inc." from and after the Effective
Time.
3.2 Bylaws. The Bylaws of the Surviving Corporation from and after
the Effective Time, until duly amended in accordance with the
terms thereof and in accordance with the Surviving
Corporation's Certificate of Incorporation and the DGCL, will
be the Bylaws of PMHC which will be amended as of the
Effective Time to provide for substantially the same
provisions as the Bylaws of PMI as in effect immediately prior
to the Effective Time.
3.3 Directors and Officers. The directors and officers of the
Surviving Corporation from and after the Effective Time, until
their respective successors are duly elected or appointed and
qualified or until their earlier death, resignation or
removal, will be the individuals listed on Exhibit A hereto.
4. CONVERSION OF SHARES. Subject to the provisions of this Article 4, at
the Effective Time, by virtue of the Merger and without any action on
the part of the holders of the capital stock of the Constituent
Corporations, the capital stock of the Constituent Corporations will be
converted as follows:
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4.1 Cancellation of PMI Stock. At the Effective Time, each share
of common stock, par value $0.01 per share, of PMI (the "PMI
Stock") issued and outstanding immediately prior to the
Effective Time and each share of PMI Stock, if any, held as
treasury stock immediately prior to the Effective Time will be
canceled and retired without payment of any consideration
therefor and will cease to exist.
4.2 PMHC Stock. Each share of PMHC Stock (as defined below) issued
and outstanding immediately prior to the Effective Time will
continue to be one share of PMHC Stock, with the same rights,
powers, preferences and privileges as immediately prior to the
Effective Time.
5. REPRESENTATIONS AND WARRANTIES OF KOCH AGRICULTURE. Koch Agriculture
represents and warrants as follows:
5.1 Capitalization of PMHC. As of the date of this Agreement:
(i) the authorized capital stock of PMHC consists of
800,000 shares of common stock, par value $0.01 per
share and 200,000 shares of preferred stock
(collectively, the "PMHC Stock"), of which 1,000
shares of common stock are issued and outstanding and
owned by Koch Agriculture and all remaining shares
are authorized but unissued.
(ii) other than the PMHC Stock, there are no outstanding
(a) classes of capital stock of PMHC, (b) securities
convertible into or exchangeable for capital stock of
PMHC, (c) options, warrants or other rights to
purchase or subscribe to capital stock of PMHC or to
purchase or subscribe to securities convertible into
or exchangeable for capital stock of PMHC or (d)
contracts, commitments, agreements, understandings or
arrangements of any kind relating to any of the
foregoing in this Subsection 5.1(ii) (other than as
contemplated in the Plan); and
(iii) all issued and outstanding shares of capital stock of
PMHC are validly issued, fully paid and
nonassessable.
5.2 Organization. PMHC (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
state of Delaware, (ii) has full corporate power and authority
to carry on its business as conducted prior to the effect of
the Merger and to own the properties and assets it now owns
and (iii) is duly qualified or licensed to do business in
Kansas.
5.3 Authorization. PMHC has full corporate power and authority to
enter into this Agreement and to carry out the transactions
contemplated hereby. The board of directors and the sole
stockholder of PMHC have taken all actions required by law,
PMHC's Certificate of Incorporation and its Bylaws or
otherwise required to be taken by them to authorize the
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby. This Agreement is a
valid and binding agreement of PMHC enforceable in accordance
with its terms.
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5.4 Subsidiaries and Affiliates. As of the date of this Agreement
and at Effective Time, PMHC does not own directly any capital
stock or other equity securities of any corporation or have
any direct equity or ownership interest in any business other
than PMI.
6. REPRESENTATIONS AND WARRANTIES OF PMI. PMI represents and warrants as
follows:
6.1 Organization. PMI (i) is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Delaware, (ii) has full corporate power and authority to carry
on its business as it is now being conducted and to own the
properties and assets it now owns and (iii) is duly qualified
or licensed to do business as a foreign corporation in good
standing in every jurisdiction in which such qualification is
required for the ownership of its property, the conduct of its
business, or otherwise.
6.2 Authorization. PMI has full corporate power and authority to
enter into this Agreement and to carry out the transactions
contemplated hereby. The board of directors and sole
stockholder of PMI have taken all action required by law,
PMI's Certificate of Incorporation and its Bylaws or otherwise
required to be taken by them to authorize the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement is a valid
and binding agreement of PMI enforceable in accordance with
its terms.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties in this Agreement will survive the Effective Time for a
period of one year after the Effective Time.
8. INDEMNIFICATION.
8.1 Indemnification Obligation of Koch Agriculture. For a period
of one year after the Effective Time, Koch Agriculture shall
indemnify, defend and hold harmless the Surviving Corporation,
along with its successors in interest, against any demands,
claims, actions or causes of action, assessments,
investigations, losses, damages, liabilities, costs and
expenses, including, without limitation, interest, penalties
and attorney's fees and expenses, asserted against or imposed
upon or incurred by the Surviving Corporation, arising out of
or resulting from any breach of any representation or warranty
of Koch Agriculture contained in or made pursuant to this
Agreement if such breach has a material adverse effect on the
operations of the Surviving Corporation.
8.2 Indemnification Obligation of the Surviving Corporation. For a
period of one year after the Effective Time, the Surviving
Corporation, shall indemnify, defend and hold harmless Koch
Agriculture, along with its successors in interest, against
any demands, claims, actions or causes of action, assessments,
investigations, losses, damages, liabilities, costs and
expenses, including, without limitation, interest, penalties
and attorney's fees and expenses, asserted against or imposed
upon or incurred by Koch Agriculture, arising out of or
resulting from any breach of any representation or warranty of
PMI contained in or made pursuant to this
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Agreement if such breach has a material adverse effect on the
operations of the Koch Agriculture.
9. EXPENSES. Each party to the Agreement will be responsible for and will
pay all out-of-pocket expenses (including, without limitation, all fees
and expenses of counsel, accountants, experts and consultants) that it
incurs in connection with or related to the authorization, preparation
and performance of this Agreement and the transactions contemplated
hereby.
10. MISCELLANEOUS.
10.1 Amendments. This Agreement may be amended only by a writing
executed by each of the parties hereto.
10.2 Further Actions. The Constituent Corporations and the Koch
Agriculture will take or cause to be taken all action and will
do or cause to be done all things necessary, proper or
advisable under the laws of the State of Delaware to
consummate and make effective the Merger and to carry out the
provisions of this Agreement.
10.3 Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto and supersedes all prior
contracts, agreements, arrangements, communications,
discussions, representations and warranties, whether oral or
written, between the parties with respect to the subject
matter hereof.
10.4 Governing Law. This Agreement is in all respects governed by
and must be construed and enforced in accordance with the
internal laws of the State of Delaware.
10.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original
and all of which together will constitute one and the same
instrument.
10.6 Third Parties. Nothing expressed or implied in this Agreement
is intended or may be construed to confer upon or give any
person or entity other than the Constituent Corporations any
rights or remedies under or by reason of this Agreement.
10.7 Headings. The headings in this Agreement are solely for
convenience of reference and may not be given any effect in
the construction or interpretation of this Agreement.
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SIGNATURES
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PMI, PMHC and Koch Agriculture have executed this Agreement and Plan of
Merger by their duly authorized officers, each as of the date first above
written.
PURINA XXXXX, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
PM HOLDINGS CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
XXXX AGRICULTURE COMPANY
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT A
Directors and Officers of the Surviving Corporation
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Directors: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Officers: Name Title
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[to be provided]
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