EXHIBIT 2.3
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 CORPORATION (the
"Colorado Corporation") and DAKOTA GROWERS RESTRUCTURING COMPANY, INC. (the
"North Dakota Corporation"), each of which may be referred to herein as a
"Constituent Corporation" and both of which may be collectively referred to
herein as the "Constituent Corporations."
WHEREAS, the Colorado Corporation and the North Dakota 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 Corporation desire to amend and restate
hereby.
WHEREAS, the Colorado Corporation is a corporation organized under
Title 7, Article 101 of the Colorado Revised Statutes, as amended (the "Colorado
Corporation Act") and North Dakota Corporation is a corporation organized under
Section 10-19.1 of the North Dakota Business Corporation Act (the "North Dakota
Corporation Act"), and is a wholly owned subsidiary of North Dakota Cooperative.
The Colorado Corporation Act and the North Dakota Corporation Act may be
referred to herein collectively as the "Acts."
WHEREAS, prior to the effective time of the merger of the Colorado
Corporation with and into the North Dakota Corporation as contemplated by
this Plan. Dakota Growers Pasta Company, a North Dakota cooperative (the
"North Dakota Cooperative"), merged with and into Dakota Growers
Restructuring Cooperative, a Colorado cooperative (the "Colorado
Cooperative"), with the Colorado Cooperative surviving such transaction (the
"First Merger"), and after the effective time of the First Merger but prior
to the effective time of the merger of the Colorado Corporation with and into
the North Dakota Corporation as contemplated by this Plan, the Colorado
Cooperative merged with and into the Colorado Corporation, with the Colorado
Corporation surviving such transaction (the "Second Merger"; and, together
with the First Merger, the "Initial Mergers").
WHEREAS, prior to the Initial Mergers, each of the Colorado Corporation
and the North Dakota Corporation were wholly-owned subsidiaries of the North
Dakota Cooperative and, by virtue of the Initial Mergers, the North Dakota
Corporation became a wholly-owned subsidiary of the Colorado Corporation.
WHEREAS, the respective Boards of Directors of the Colorado Corporation
and North Dakota Corporation and the Board of Directors of North Dakota
Cooperative, as the sole shareholder of each of Colorado Corporation and North
Dakota Corporation prior to the Initial Mergers and on the record date for
voting upon this Plan, 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. The Colorado Corporation and North Dakota
Corporation shall combine through merger (the "Dakota Pasta Merger") in
accordance with the applicable provisions of the Acts, and North Dakota
Corporation shall be the surviving corporation and shall continue to exist as
a North Dakota corporation by virtue of, and shall be governed by, the North
Dakota Corporation Act.
SECTION 2. ARTICLES OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the Dakota Pasta
Merger, the articles of merger (the "Articles of Merger") and a statement of
merger ("Statement of Merger") shall be executed in compliance with Title 7,
Article 101 of the Colorado Corporation Act and Section 10-19.1 of the North
Dakota Corporation Act, respectively. The Articles of Merger shall be filed with
the Secretary of State of the State of North Dakota 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 of
the Dakota Pasta Merger, without any further action by the Constituent
Corporations or any of their respective shareholders: (a) North Dakota
Corporation, as the surviving corporation in the Dakota Pasta 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 North Dakota Corporation Act; (b) North Dakota Corporation, as the
surviving corporation in the Dakota Pasta Merger, shall possess all of the
rights, privileges, immunities and franchises, of a public as well as a
private nature, of each Constituent Corporation, 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 Corporation, shall be deemed to be and hereby is vested in North
Dakota Corporation, without further act or deed, and the title to any property,
or any interest therein, vested in either Constituent Corporation, shall not
revert or be in any way impaired by reason of the Dakota Pasta Merger; (c) North
Dakota Corporation shall be responsible and liable for all of the liabilities
and obligations of each Constituent Corporation, and any claim existing or
action or proceeding pending by or against one of the Constituent Corporations
may be prosecuted as if the Dakota Pasta Merger had not taken place or North
Dakota Corporation may be substituted in its place; (d) neither the rights of
creditors nor any liens upon the property of either of the Constituent
Corporations shall be impaired by the Dakota Pasta Merger; and (e) the Dakota
Pasta Merger shall have any other effect set forth in the Acts and the Second
Amended and Restated Transaction Agreement dated April 18, 2002 between the
Colorado Corporation, North Dakota Corporation,
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Colorado Cooperative and North Dakota Cooperative, (the "Transaction
Agreement"), in each case 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 of the Dakota Pasta Merger, pursuant to the Articles of
Merger and without any further action by the Constituent Corporations or any
of their respective shareholders, the Articles of Incorporation of North
Dakota Corporation in effect immediately prior to the effective time of the
Dakota Pasta Merger shall be the Articles of Incorporation of North Dakota
Corporation, as the surviving corporation in the Dakota Pasta Merger (the
"Surviving Entity Articles"). From and after the effective time of the Dakota
Pasta Merger, without any further action by the Constituent Corporations or
any of their respective shareholders, the Bylaws of North Dakota Corporation
in effect immediately prior to the effective time of the Dakota Pasta Merger
shall be the Bylaws of North Dakota Corporation, as the surviving corporation
in the Dakota Pasta Merger (the "Surviving Entity Bylaws"). A copy of the
Surviving Entity Articles of Incorporation and Bylaws has been provided to
the respective shareholders of each Constituent Corporation.
SECTION 5. BOARD OF DIRECTORS AND OFFICERS. From and after the
effective time of the Dakota Pasta Merger, without any further action by the
Constituent Corporations or any of their respective shareholders, each person
serving as a director or an officer of the Colorado Corporation immediately
prior to the effective time of the Dakota Pasta Merger shall become a
director or an officer of North Dakota Corporation, as the surviving
corporation in the Dakota Pasta Merger, (in the case of officers, holding the
same office in North Dakota Corporation as they held in the Colorado
Corporation immediately prior to the effective time of the Dakota Pasta
Merger) to serve in accordance with the Surviving Entity Bylaws. The
directors and officers of North Dakota Corporation immediately prior to the
effective time of the Dakota Pasta Merger shall resign their positions as
directors and officers of North Dakota Corporation as of the effective time
of the Dakota Pasta Merger.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION AND CONTINUATION OF
EQUITY INTERESTS. At the effective time of the Dakota Pasta Merger, the
manner and basis of exchanging and continuing the shares of capital stock and
options to purchase capital stock of the Colorado Corporation and North
Dakota Corporation (all such interests referred to herein as "Colorado
Corporation Equity Interests" or "North Dakota Corporation Equity Interests",
respectively), and ownership interests in the Colorado Corporation and North
Dakota Corporation, for equal Equity Interests and ownership interests in
North Dakota Corporation, shall be as follows:
(a) COLORADO CORPORATION SHARES. As of the effective time of the
Dakota Pasta Merger, without any further action by the Constituent
Corporations or any of their respective shareholders, the Colorado
Corporation, as the sole shareholder of North Dakota Corporation
after the Initial Mergers and immediately prior to the effective
time of the Dakota Pasta Merger, shall cease to exist by operation
of the Dakota Pasta Merger and shall cease to be a shareholder of
North Dakota Corporation.
(b) EXCHANGE AND CONTINUATION OF CORPORATE EQUITY INTERESTS. As of the
effective time of the Dakota Pasta Merger, without any further
action by the Constituent Corporations or any of their respective
shareholders, all Colorado Corporation Equity Interests standing on
the books of the Colorado Corporation immediately prior to the
effective time of the Dakota Pasta Merger shall be determined
and exchanged for equal North Dakota Corporation Equity Interests at
its stated dollar amount on a dollar-for-dollar basis, including as
follows:
(i) COMMON STOCK. Each share of Common Stock, $.01 par value per
share, of the Colorado Corporation issued and outstanding
immediately prior to the effective time of the Dakota Pasta
Merger shall cease to be outstanding and shall be exchanged
for one (1) share of Common Stock, $.01 par value per
share, of North Dakota Corporation.
(ii) SERIES A 6% REDEEMABLE CUMULATIVE PREFERRED STOCK. Each share
of Series A 6% Redeemable Cumulative Preferred Stock, $100 par
value per share, of the Colorado Corporation issued and
outstanding immediately prior to the effective time of the
Dakota Pasta 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
North Dakota Corporation.
(iii) SERIES B 2% REDEEMABLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series B 2% Redeemable Non-Cumulative Preferred
Stock, $100 par value per share, of the Colorado Corporation
issued and outstanding immediately prior to the effective
time of the Dakota Pasta Merger shall cease to be
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outstanding and shall be exchanged for one (1) share of Series
B 2% Redeemable Non-Cumulative Preferred Stock, $100 par value
per share, of North Dakota Corporation.
(iv) SERIES C 6% CONVERTIBLE NON-CUMULATIVE PREFERRED STOCK. Each
share of Series C 6% Convertible Non-Cumulative Preferred
Stock, $100 par value per share, of the Colorado Corporation
issued and outstanding immediately prior to the effective
time of the Dakota Pasta 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 North Dakota Corporation.
(v) 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 Corporation which have been granted and
which have not been exercised immediately prior to the
effective time of the Dakota Pasta 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 North Dakota Corporation.
(vi) SERIES D NON-CUMULATIVE DELIVERY PREFERRED STOCK. Each share
of Series D Non-Cumulative Delivery Preferred Stock, $.01 par
value per share, of the Colorado Corporation issued and
outstanding immediately prior to the effective time of the
Dakota Pasta Merger shall cease to be outstanding and shall
be exchanged for one (1) share of Series D Non-Cumulative
Delivery Preferred Stock, $.01 par value per share, of
North Dakota Corporation.
(vii) NET EFFECT. The net effect of the exchange of Colorado
Corporation Equity Interests for equal North Dakota
Corporation Equity Interests shall be that the holders of
Colorado Corporation Equity Interests standing on the books of
the Colorado Corporation immediately prior to the effective
time of the Dakota Pasta Merger shall hold and will have
equal North Dakota Corporation Equity Interests immediately
following the effective time of the Dakota Pasta Merger, in
terms of stated dollar amount on a dollar-for-dollar basis
and any other rights and preferences.
(c) NORTH DAKOTA CORPORATION EQUITY INTERESTS. After the Initial
Mergers and immediately prior to the effective time of the Dakota
Pasta Merger, the Colorado Corporation is the sole shareholder of
North Dakota Corporation and all equity interest of any and every
nature in North Dakota Corporation is owned by and held in the name
of the Colorado Corporation. At the effective time of the Dakota
Pasta Merger, the Colorado Corporation, as the merging entity, shall
merge with and into North Dakota Corporation and shall cease to exist
in its own right. All North Dakota Corporation Equity Interests of any
and every nature standing on the books of North Dakota Corporation and
held by the Colorado Corporation immediately prior to the effective
time of the Dakota Pasta Merger shall be cancelled.
(d) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Ownership in North
Dakota Corporation and all North Dakota Corporation Equity Interests,
whether issued or credited in exchange for Colorado Corporation Equity
Interests or continued with respect to North Dakota 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.
(e) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of Colorado
Corporation Equity Interests and each holder of North Dakota
Corporation Equity Interests shall take such action or cause to be
taken such action as North Dakota 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 Dakota Pasta Merger, as and when requested by North
Dakota Corporation, or its successors or assigns, the Colorado Corporation
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 North Dakota Corporation, or its successors or
assigns, may deem necessary or desirable in order to vest in and confirm to
North Dakota 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
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Plan, and otherwise to carry out the intent and purposes of this Plan. If North
Dakota 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 the Colorado Corporation or North Dakota Corporation vested in North
Dakota Corporation pursuant to this Plan, the officers of North Dakota
Corporation or its successors or assigns, are hereby specifically authorized as
attorneys-in-fact of each the Colorado Corporation and North Dakota 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 the Colorado Corporation and North
Dakota Corporation, or otherwise, as such officer shall deem necessary or
appropriate to accomplish such purpose.
SECTION 8. AMENDMENTS TO ARTICLES. As part of the Dakota Pasta Merger,
immediately following the effective time of the Dakota Pasta Merger, the
Surviving Entity Articles shall be amended to change the name of the North
Dakota Corporation from Dakota Growers Restructuring Company, Inc. to Dakota
Growers Pasta Company, Inc.
SECTION 9. GOVERNING LAW. This Plan shall be governed by and construed
in accordance with the laws of the State of Colorado. In addition, this Plan
complies with the requirements of the laws of the State of North Dakota.
IN WITNESS WHEREOF, this Plan has been agreed to and executed by the
duly authorized representatives of the Colorado Corporation and North Dakota
Corporation, as of the date first set forth above.
DAKOTA GROWERS RESTRUCTURING COMPANY, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Its: Chairman
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DAKOTA GROWERS CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Its: Chairman
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