PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan") is dated as of January __, 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
choses 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 Transaction
Agreement dated January ___, 1999 between the Cooperative, MCP Colorado and
Minnesota Corn Processors, LLC (the "Transaction Agreement"); all with the
effect and to the extent provided in the applicable provisions of the Acts.
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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 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
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participation and any other allocated or to be allocated patronage
equity interests (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 cancelled.
(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
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necessary or desirable in order to vest in and confirm to MCP Colorado, 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 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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