EXHIBIT 2.2
SECOND AMENDED AND RESTATED
PLAN OF MERGER
THIS SECOND AMENDED AND RESTATED PLAN OF MERGER (the "Plan") is dated
as of April 18, 2002, and is by and between DAKOTA GROWERS PASTA RESTRUCTURING
COOPERATIVE, ("Colorado Cooperative") and DAKOTA GROWERS CORPORATION ("Colorado
Corporation"), 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, the Colorado Cooperative and the Colorado Corporation have
entered into a certain Plan of Merger, dated as of January 31, 2002, as amended
and restated by a certain Amended and Restated Plan of Merger, dated as of March
12, 2002, which the Constituent Entities desire to amend and restate hereby.
WHEREAS, Colorado Cooperative is a cooperative association organized
under Title 7, Article 56 of the Colorado Revised Statutes as amended (the
"Colorado Cooperative Act"), and Colorado Corporation is a corporation organized
under Title 7, Article 101 of the Colorado Revised Statutes, as amended (the
"Colorado Corporation Act"). The Colorado Cooperative Act and the Colorado
Corporation Act may be referred to herein collectively as the "Acts."
WHEREAS, prior to the effective time of the merger of the Colorado
Cooperative with and into the Colorado Corporation as contemplated by this
Plan, Dakota Growers Pasta Company, a North Dakota cooperative (the "North
Dakota Cooperative"), merged with and into the Colorado Cooperative, with the
Colorado Cooperative surviving such transaction (the "Initial Merger").
WHEREAS, prior to the Initial Merger, each of the Colorado Cooperative
and the Colorado Corporation were wholly-owned subsidiaries of the North Dakota
Cooperative, and, by virtue of the Initial Merger, the Colorado Corporation
became a wholly-owned subsidiary of the Colorado Cooperative.
WHEREAS, the Board of Directors of Colorado Cooperative and the Board
of Directors of North Dakota Cooperative, as the sole member of Colorado
Cooperative prior to the Initial Merger and on the record date for voting
upon this Plan, have approved and adopted this Plan and the transactions
contemplated hereby in the manner required by its Articles of Incorporation
and Bylaws, the Colorado Cooperative 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 of Colorado Corporation and the Board
of Directors of North Dakota Cooperative, as the sole shareholder of Colorado
Corporation prior to the Initial Merger and on the record date for voting upon
this Plan, have approved and adopted this Plan and the transactions contemplated
hereby in the manner required by its Articles of Incorporation and Bylaws, the
Colorado Corporation 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. Colorado Cooperative and Colorado Corporation
shall combine through merger (the "Colorado Corporation Merger") in
accordance with the applicable provisions of the Acts and the CCA Act, and
Colorado Corporation shall be the surviving entity and shall continue to
exist as a Colorado corporation with principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, by virtue of, and shall be governed by, the
Colorado Corporation Act.
SECTION 2. STATEMENT OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the Colorado
Corporation Merger, statements of merger (the "Statement of Merger") shall be
executed by each of the Colorado Cooperative and the Colorado Corporation in
accordance with all legal requirements. The Statements 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 of
the Colorado Corporation Merger, without any further action by the
Constituent Entities or any of their respective members: (a) Colorado
Corporation, as the surviving entity in the Colorado Corporation Merger,
shall have all of the rights, privileges, immunities and powers, and shall be
subject to all the duties and liabilities, of a corporation organized under
the Colorado Corporation Act; (b) Colorado Corporation, as the surviving
entity in the Colorado Corporation 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 Colorado
Corporation, 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 Colorado Corporation Merger; (c)
Colorado Corporation 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 Colorado Corporation Merger had not
taken place or Colorado Corporation may be substituted
1
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 Colorado
Corporation Merger; and (e) the Colorado Corporation Merger shall have any other
effect set forth in the Acts, the CCA Act, and the Second Amended and Restated
Transaction Agreement dated January 30, 2002 between the North Dakota
Cooperative, Colorado Cooperative, Colorado Corporation and Dakota Growers
Restructuring Company, Inc. (the "North Dakota Corporation"), a North Dakota
corporation (the "Transaction Agreement"), in each case with the effect and to
the extent provided in the applicable provisions of Colorado law.
SECTION 4. ARTICLES OF INCORPORATION; BYLAWS. From and after the
effective time of the Colorado Corporation Merger, pursuant to the Statements
of Merger and without any further action by the Constituent Entities or any
of their respective members, the Articles of Incorporation of Colorado
Corporation in effect immediately prior to the effective time of the Colorado
Corporation Merger shall be the Articles of Incorporation of Colorado
Corporation, as the surviving entity in the Colorado Corporation Merger (the
"Surviving Entity Articles"). From and after the effective time of the
Colorado Corporation Merger, without any further action by the Constituent
Entities or any of their respective members, the Bylaws of Colorado
Corporation as in effect immediately prior to the effective time of the
Colorado Corporation Merger shall be the Bylaws of Colorado Corporation, as
the surviving entity in the Colorado Corporation Merger (the "Surviving
Entity Operating Agreement"). A copy of the Surviving Entity Articles of
Incorporation and Bylaws has been provided to the respective members of each
Constituent Entity.
SECTION 5. BOARD OF DIRECTORS. From and after the effective time
of the Colorado Corporation Merger, without any further action by the
Constituent Entities or any of their respective members, each person serving
as a director or an officer of Colorado Cooperative immediately prior to the
effective time of the Colorado Corporation Merger shall be a director or an
officer of Colorado Corporation, as the surviving entity in the Colorado
Corporation Merger, (in the case of officers, holding the same office in
Colorado Corporation as they held in Colorado Cooperative immediately prior
to the effective time of the Colorado Corporation Merger, except that the
person holding the office of President and General Manager of Colorado
Cooperative immediately prior to the effective time of the Colorado
Corporation Merger shall hold the office of President and Chief Executive
Officer of Colorado Corporation) to serve in accordance with the Surviving
Entity Articles. The directors and officers of Colorado Corporation
immediately prior to the effective time of the Colorado Corporation Merger
shall resign their positions as directors and officers of Colorado
Corporation as of the effective time of the Colorado Corporation Merger.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION OF CAPITAL STOCK,
NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS. At the
effective time of the Colorado Corporation Merger, 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, unallocated and
capital reserves and options of Colorado Cooperative and Colorado Corporation
(all such interests referred to herein as "Colorado Cooperative Equity
Interests" or "Colorado Corporation Equity Interests," respectively), and
membership interests in Colorado Cooperative and ownership interests in
Colorado Corporation, for proportionally equivalent Equity Interests and
ownership interests in Colorado Corporation, shall be as follows:
(a) EXCHANGE OF COLORADO COOPERATIVE MEMBERSHIPS. As of the effective
time of the Colorado Corporation Merger, without any further action
by the Constituent Entities or any of their respective members, (i)
each member and holder of Membership Stock, $125 par value per
share, and Equity Stock, $2.50 par value per share, of Colorado
Cooperative shall become and be a shareholder and holder of Common
Stock, $.01 par value per share, of Colorado Corporation, (ii) each
holder of Equity Stock, $2.50 par value per share, of Colorado
Cooperative, shall become and be a shareholder and holder of Series D
Non-Cumulative Delivery Preferred Stock, $.01 par value per share,
of Colorado Corporation, (iii) each member and holder of
Non-Qualified Written Notices of Allocation of Colorado Cooperative
shall receive one (1) share of Common Stock, $.01 par value per share,
of Colorado Corporation for every $7.36 of Non-Qualified Written
Notices of Allocation so held, (iv) each holder of Series A 6%
Redeemable Non-Cumulative Preferred Stock, $100 par value per share, of
Colorado Cooperative, shall become and be a shareholder and holder of
Series A 6% Redeemable Cumulative Preferred Stock, $100 par value per
share, of Colorado Corporation, (v) each holder of Series B 2%
Redeemable Non-Cumulative Preferred Stock, $100 par value per share, of
Colorado Cooperative, shall become and be a shareholder and holder of
Series B 2% Redeemable Non-Cumulative Preferred Stock, $100 par value
per share, of Colorado Corporation and (vi) each holder of Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value per share,
of Colorado Cooperative, shall become and be a shareholder and holder
of Series C 6% Convertible Non-Cumulative Preferred Stock,
2
$100 par value per share, of Colorado Corporation. Holders of Common
Stock, Series A 6% Redeemable Cumulative Preferred Stock, Series B 2%
Redeemable Non-Cumulative Preferred Stock, Series C 6% Convertible
Non-Cumulative Preferred Stock and Series D Non-Cumulative Delivery
Preferred Stock shall have such incidents of ownership as are set forth
in the Surviving Entity Articles and the Surviving Entity Bylaws.
(b) COLORADO CORPORATION OWNERSHIP. At the effective time of the
Colorado Corporation Merger, without any further action by the
Constituent Entities or any of their respective members or
shareholders, Colorado Cooperative, as the sole member of Colorado
Corporation immediately prior to the effective time of the Colorado
Corporation Merger, shall cease to exist by operation of the
Colorado Corporation Merger and shall also cease to be a shareholder
of Colorado Corporation.
(c) EXCHANGE AND CONTINUATION OF COLORADO COOPERATIVE EQUITY
INTERESTS. At the effective time of the Colorado Corporation Merger,
without any further action by the Constituent Entities or any of their
respective members or shareholders, as the case may be, all Colorado
Cooperative Equity Interests standing on the books of Colorado
Cooperative immediately after the consummation of the Initial Merger,
and immediately prior to the effective time of the Colorado Corporation
Merger shall be determined and exchanged for proportionally equivalent
Colorado Corporation Equity Interests in Colorado Corporation as
follows:
(i) MEMBERSHIP STOCK. Each share of Membership Stock, $125 par
value per share, standing on the books of Colorado Cooperative
and held by members of Colorado Cooperative immediately prior
to the effective time of the Colorado Corporation Merger
shall cease to be outstanding and shall be exchanged for
twenty-five (25) shares of Common Stock, $.01 par value per
share, of Colorado Corporation.
(ii) EQUITY STOCK. Each share of Equity Stock, $2.50 par value per
share, standing on the books of Colorado Cooperative and held
by members of Colorado Cooperative immediately prior to the
effective time of the Colorado Corporation Merger shall
cease to be outstanding and shall be exchanged for one (1)
share of Common Stock, $.01 par value per share, of
Colorado Corporation and one (1) share of Series D
Non-Cumulative Delivery Preferred Stock, $.01 par value per
share, of Colorado Corporation.
(iii) SERIES A 6% REDEEMABLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series A 6% Redeemable Non-Cumulative Preferred
Stock, $100 par value per share, standing on the books of
Colorado Cooperative and held by stockholders of Colorado
Cooperative immediately prior to the effective time of the
Colorado Corporation Merger shall cease to be outstanding
and shall be exchanged for one (1) share of Series A 6%
Redeemable Cumulative Preferred Stock, $100 par value per
share, of Colorado Corporation.
(iv) SERIES B 2% REDEEMABLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series B 2% Redeemable Non-Cumulative Preferred
Stock, $100 par value per share, standing on the books of
Colorado Cooperative and held by stockholders of Colorado
Cooperative immediately prior to the effective time of the
Colorado Corporation Merger shall cease to be outstanding
and shall be exchanged for one (1) share of Series B 2%
Redeemable Non-Cumulative Preferred Stock, $100 par value
per share, of Colorado Corporation.
(v) SERIES C 6% CONVERTIBLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series C 6% Convertible Non-Cumulative Preferred
Stock, $100 par value per share, standing on the books of
Colorado Cooperative and held by stockholders of Colorado
Cooperative immediately prior to the effective time of the
Colorado Corporation Merger shall cease to be outstanding
and shall be exchanged for one (1) share of Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value
per share, of Colorado Corporation.
(vi) OPTIONS TO PURCHASE SERIES C 6% CONVERTIBLE NON-CUMULATIVE
PREFERRED STOCK. Each option to purchase shares of Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value per
share, of Colorado Cooperative which have been granted and
which have not been exercised immediately prior to the
effective time of the Colorado Corporation Merger shall
cease to be exercisable and shall be exchanged for an
option to purchase a like number of shares of Series C 6%
Convertible Non-Cumulative Preferred Stock, $100 par value
per share, of Colorado Corporation.
(d) COLORADO COOPERATIVE EQUITY INTERESTS. All shares of Membership
Stock, $125
3
par value per share, Equity Stock, $2.50 par value per share, Series A
6% Redeemable Cumulative Preferred Stock, $100 par value per share,
Series B 2% Redeemable Non-Cumulative Preferred Stock, $100 par value
per share, Series C 6% Convertible Non-Cumulative Preferred Stock, $100
par value per share, and options to purchase Series C 6% Convertible
Non-Cumulative Preferred Stock, $100 par value per share, on the books
of Colorado Cooperative immediately prior to the effective time of
the Colorado Corporation Merger, shall be cancelled and shall cease
to exist.
(e) NON-QUALIFIED WRITTEN NOTICES OF ALLOCATION. Every $7.36 of
Non-Qualified Written Notices of Allocation standing on the books of
Colorado Cooperative immediately prior to the effective time of the
Colorado Corporation Merger shall be converted into one (1) share of
Common Stock, $.01 par value per share, of Colorado Corporation.
(f) COLORADO CORPORATION EQUITY INTERESTS. After the Initial Merger and
immediately prior to the effective time of the Colorado Corporation
Merger, Colorado Cooperative is the sole member of Colorado
Corporation and all equity interest of any and every nature in
Colorado Corporation is owned by and held in the name of Colorado
Cooperative. At the effective time of the Colorado Corporation
Merger, Colorado Cooperative, as the merging entity, shall merge
with and into Colorado Corporation and shall cease to exist in its
own right. All Colorado Corporation Equity Interests of any and
every nature standing on the books of Colorado Cooperative
immediately prior to the effective time of the Colorado Corporation
Merger shall be cancelled.
(g) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Ownership in
Colorado Corporation and all Colorado Corporation Equity Interests
issued or credited in exchange for Colorado Cooperative Equity
Interests and continued with respect to Colorado Corporation Equity
Interests as described above, shall in all instances be governed by the
provisions of the Surviving Entity Articles and the Surviving Entity
Bylaws.
(h) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of Colorado
Cooperative Equity Interests and each holder of Colorado Corporation
Equity Interests shall take such action or cause to be taken such
action as Colorado Corporation may reasonably deem necessary or
appropriate to effect the exchange and continuation of the equity
interests hereunder, including without limitation the execution and
delivery of any stock certificates or other evidences of equity being
exchanged or continued hereunder.
SECTION 7. FURTHER ASSURANCES. From time to time and after the
effective time of the Colorado Corporation Merger, as and when requested by
Colorado Corporation, or its successors or assigns, Colorado 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 Colorado Corporation, or its successors or
assigns, may deem necessary or desirable in order to vest in and confirm to
Colorado Corporation, or its successors or assigns, title to and possession
of all of the properties, rights, privileges, powers and franchises referred
to in Section 3 of this Plan, and otherwise to carry out the intent and
purposes of this Plan. If Colorado Corporation shall at any time deem that
any further assignments or assurances or any other acts are necessary or
desirable to vest, perfect or confirm of record or otherwise the title to any
property or to enforce any claims of Colorado Cooperative or Colorado
Corporation vested in Colorado Corporation pursuant to this Plan, the officers
of Colorado Corporation or its successors or assigns, are hereby specifically
authorized as attorneys-in-fact of each Colorado Cooperative and Colorado
Corporation (which appointment is irrevocable and coupled with an interest), to
execute and deliver any and all such deeds, assignments and assurances and to do
all such other acts in the name and on behalf of each Colorado Cooperative and
Colorado Corporation, or otherwise, as such officer shall deem necessary or
appropriate to accomplish such purpose.
SECTION 8. 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 Colorado Cooperative and Colorado
Corporation, as of the date first set forth above.
4
DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
----------------------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
-------------------------------------------------
Its: Chairman
------------------------------------------------
DAKOTA GROWERS CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
----------------------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
-------------------------------------------------
Its: Chairman
------------------------------------------------
5
