EXHIBIT 2.1
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 COMPANY (the
"North Dakota Cooperative") and DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE
("Colorado Cooperative"), 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 North Dakota Cooperative and the Colorado Cooperative 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 Cooperatives desire to amend and restate hereby.
WHEREAS, the North Dakota Cooperative is a cooperative association
organized under Section 10-15 of the North Dakota Cooperative Association Act
(the "North Dakota Act"); and Colorado Cooperative is a cooperative association
organized under Title 7, Article 56 of the Colorado Revised Statutes, as amended
(the "Colorado Cooperative Act"), and is a wholly owned subsidiary of the North
Dakota Cooperative. The North Dakota Act and the Colorado Cooperative Act may be
referred to herein collectively as the "Acts."
WHEREAS, the Board of Directors of the North Dakota Cooperative, the
Board of Directors of the Colorado Cooperative, the members of the North Dakota
Cooperative and the Board of Directors of the North Dakota Cooperative, as the
sole member of the Colorado Cooperative, 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 North Dakota Cooperative and Colorado
Cooperative shall combine through merger (the "Dakota Merger") in accordance
with the applicable provisions of the Acts, and Colorado Cooperative 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
Cooperative Act.
SECTION 2. ARTICLES OF MERGER. As soon as practicable following
satisfaction or waiver of all conditions to the consummation of the Dakota
Merger, the articles of merger (the "Articles of Merger") and a statement of
merger ("Statement of Merger") shall be executed in compliance with Section
10-15 of the North Dakota Act and Title 7, Article 56 of the Colorado
Cooperative 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 Merger, without any further action by the Constituent Cooperatives
or any of their respective members: (a) Colorado Cooperative, as the
surviving cooperative in the Dakota 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 Cooperative Act;
(b) Colorado Cooperative, as the surviving cooperative in the Dakota 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 Colorado Cooperative, 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 Dakota Merger; (c) Colorado Cooperative 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
Dakota Merger had not taken place or Colorado Cooperative 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
Dakota Merger; and (e) the Dakota 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 North Dakota Cooperative, Colorado
Cooperative, Dakota Growers Corporation (the "Colorado Corporation"), a
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 the Acts.
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SECTION 4. ARTICLES OF INCORPORATION AND BYLAWS. From and after
the effective time of the Dakota Merger, 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 Colorado
Cooperative in effect immediately prior to the effective time of the Dakota
Merger, shall be the Articles of Incorporation of Colorado Cooperative, as
the surviving cooperative in the Dakota Merger (the "Surviving Entity
Articles"). From and after the effective timeof the Dakota Merger, without
any further action by the Constituent Cooperatives or any of their respective
members, the Bylaws of Colorado Cooperative in effect immediately prior to
the effective time of the Dakota Merger, shall be the Bylaws of Colorado
Cooperative, as the surviving cooperative in the Dakota Merger (the
"Surviving Entity Bylaws"). A copy of the Surviving Entity Articles of
Incorporation and Bylaws has been provided to the respective members of each
Constituent Cooperative.
SECTION 5. BOARD OF DIRECTORS AND OFFICERS. From and after the
effective time of the Dakota Merger, 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 North Dakota Cooperative
immediately prior to the effective time of the Dakota Merger shall become a
director or an officer of Colorado Cooperative, as the surviving cooperative
in the Dakota Merger, (in the case of officers, holding the same office in
Colorado Cooperative as they held in the North Dakota Cooperative immediately
prior to the effective time of the Dakota Merger,) to serve in accordance
with the Surviving Entity Bylaws. The directors and officers of Colorado
Cooperative immediately prior to the effective time of the Dakota Merger
shall resign their positions as directors and officers of Colorado
Cooperative as of the effective time of the Dakota Merger.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION AND
CONTINUATION OF CAPITAL STOCK, NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES
AND MEMBERSHIPS. At the effective time of the Dakota Merger, 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 and options (including all
entitlements to patronage refunds), any other allocated equity interests, and
unallocated and capital reserves of the North Dakota Cooperative and Colorado
Cooperative (all such interests referred to herein as "North Dakota
Cooperative Equity Interests" or "Colorado Cooperative Equity Interests",
respectively), and membership interests in the North Dakota Cooperative and
Colorado Cooperative, for equal Equity Interests and membership interests in
Colorado Cooperative, shall be as follows:
(a) EXCHANGE AND CONTINUATION OF NORTH DAKOTA COOPERATIVE
MEMBERSHIPS. At the effective time of the Dakota Merger, without any
further action by the Constituent Cooperatives or any of their
respective members, each holder of Membership Stock, $125 par value
per share, of the North Dakota Cooperative shall become and be a
member of Colorado Cooperative, 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) COLORADO COOPERATIVE MEMBERSHIPS. As of the effective time of
the Dakota Merger, without any further action by the Constituent
Cooperatives or any of their respective members, the North Dakota
Cooperative, as the sole member of Colorado Cooperative immediately
prior to the effective time of the Dalota Merger, shall cease to
exist by operation of the Dakota Merger and shall cease to be a
member of Colorado Cooperative.
(c) EXCHANGE AND CONTINUATION OF NORTH DAKOTA COOPERATIVE EQUITY
INTERESTS. As of the effective time of the Dakota Merger, without
any further action by the Constituent Cooperatives or any of their
respective members, all North Dakota Cooperative Equity Interests
standing on the books of the North Dakota Cooperative immediately
prior to the effective time of the Dakota Merger shall be determined
and exchanged for equal Colorado Cooperative Equity Interests in
Colorado Cooperative at its stated dollar amount on a
dollar-for-dollar basis, including as follows:
(i) MEMBERSHIP STOCK. Each share of Membership Stock, $125 par
value per share, of the North Dakota Cooperative issued and
outstanding immediately prior to the effective time of the
Dakota Merger shall cease to be outstanding and shall be
exchanged for one (1) share of Membership Stock, $125 par
value per share, of Colorado Cooperative.
(ii) EQUITY STOCK. Each share of Equity Stock, $2.50 par value per
share, of the North Dakota
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Cooperative issued and outstanding immediately prior to the
effective time of the Dakota Merger shall cease to be
outstanding and shall be exchanged for one (1) share of
Equity Stock, $2.50 par value per share, of Colorado
Cooperative.
(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, of the North Dakota
Cooperative issued and outstanding immediately prior to the
effective time of the Dakota 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 Cooperative.
(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, of the North Dakota
Cooperative issued and outstanding immediately prior to
the effective time of the Dakota 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 Cooperative.
(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, of the North
Dakota Cooperative issued and outstanding immediately prior
to the effective time of the Dakota 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 Cooperative.
(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 the North Dakota Cooperative which have been granted
and which have not been exercised immediately prior to the
effective time of the Dakota 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 Cooperative.
(vii) PATRONAGE EQUITY INTERESTS AND UNITS OF EQUITY
PARTICIPATION. All patronage refunds (qualified and
non-qualified), units of equity participation and
non-voting units of equity participation and any other
allocated or to be allocated patronage equity interests
(including all entitlements thereto) standing on the books
of the North Dakota Cooperative immediately prior to the
effective time of the Dakota Merger (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 Colorado Cooperative, 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 Colorado Cooperative 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 Colorado Cooperative to the same
obligation for loss allocation as standing on the books of
the North Dakota Cooperative immediately prior to the
effective time of the Dakota Merger.
(viii) NET EFFECT. The net effect of the exchange of North Dakota
Cooperative Equity Interests for equal Colorado
Cooperative Equity Interests shall be that the holders of
North Dakota Cooperative Equity Interests standing on the
books of the North Dakota Cooperative immediately prior to
the effective time of the Dakota Merger shall hold and will
have equal Colorado Cooperative Equity Interests immediately
following the effective time of the Dakota Merger, 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 North Dakota Cooperative Equity Interests, as
standing on its books immediately prior to the effective
time of the Dakota Merger, shall be exchanged and credited
for an equal Colorado Cooperative Equity Interest immediately
following the effective time of the Dakota Merger, in terms
of stated dollar amount on a dollar-for-dollar basis and
other rights and preferences.
(d) NORTH DAKOTA COOPERATIVE EQUITY INTERESTS. All shares of Membership
Stock,
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$125 par value per share, Equity Stock, $2.50 par value per share,
Series A 6% Redeemable Non-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 North Dakota Cooperative immediately prior to the
effective time of the Dakota Merger shall be cancelled and shall cease
to exist.
(e) COLORADO COOPERATIVE EQUITY INTERESTS. Prior to the effective
time of the Dakota Merger, the North Dakota Cooperative is the sole
member of Colorado Cooperative and all equity interest of any and
every nature in Colorado Cooperative is owned by and held in the name
of the North Dakota Cooperative. At the effective time of the Dakota
Merger, the North Dakota Cooperative, as the merging entity, shall
merge with and into Colorado Cooperative and shall cease to exist in
its own right. All Colorado Cooperative Equity Interests of any and
every nature standing on the books of Colorado Cooperative and held
by the North Dakota Cooperative immediately prior to the effective
time of the Dakota Merger shall be cancelled.
(f) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN. Membership in
Colorado Cooperative and all Colorado Cooperative Equity Interests,
whether issued or credited in exchange for North Dakota Cooperative
Equity Interests or continued with respect to Colorado Cooperative
Equity Interests as described above, shall in all instances be governed
by the provisions of the Surviving Entity Articles and the Surviving
Entity Bylaws.
(g) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder of North
Dakota Cooperative Equity Interests and each holder of Colorado
Cooperative Equity Interests shall take such action or cause to be
taken such action as Colorado Cooperative 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 Merger, as and when requested by Colorado
Cooperative, or its successors or assigns, the North Dakota 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 Cooperative, or its successors or assigns, may
deem necessary or desirable in order to vest in and confirm to Colorado
Cooperative, 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 Cooperative 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 North Dakota Cooperative or Colorado Cooperative
vested in Colorado Cooperative pursuant to this Plan, the officers of
Colorado Cooperative or its successors or assigns, are hereby specifically
authorized as attorneys-in-fact of each the North Dakota Cooperative and
Colorado Cooperative (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 North Dakota Cooperative and Colorado Cooperative, 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
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 North Dakota Cooperative and Colorado
Cooperative, as of the date first set forth above.
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DAKOTA GROWERS PASTA COMPANY
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Its: Chairman
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DAKOTA GROWERS PASTA RESTRUCTURING COOPERATIVE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Its: Chairman
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