EXHIBIT 2.2
AMENDED AND RESTATED
PLAN OF MERGER
THIS AMENDED AND RESTATED PLAN OF MERGER (the "Plan") is dated as of
March 12, 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, 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"), and a wholly owned subsidiary of Colorado
Cooperative as a result of a merger of Dakota Growers Pasta Company, a North
Dakota cooperative association (the "North Dakota Cooperative"), with and into
Colorado Cooperative, effective on the date hereof. The Colorado Cooperative Act
and the Colorado Corporation Act may be referred to herein collectively as the
"Acts"; and
WHEREAS, the Board of Directors of Colorado Cooperative and the Board
of Directors of North Dakota Cooperative, as the sole member of Colorado
Cooperative, 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, 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. At the Effective Time (as defined in Section 8),
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, a statement of merger (the "Statement of Merger") shall be
executed in accordance with all legal requirements. The Statement 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, 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
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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 Transaction Agreement dated
January 30, 2002 between the North Dakota Cooperative, Colorado Cooperative,
Colorado Corporation and Dakota Growers Pasta Company, Inc., 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, pursuant to the Statement 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 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, 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 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
was provided to the respective members of each Constituent Entity in connection
with their consideration of the Colorado Corporation Merger.
SECTION 5. BOARD OF DIRECTORS. From and after the Effective Time,
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 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, except that the person holding the office of President and
General Manager of Colorado Cooperative immediately prior to the Effective Time
shall hold the office of President and Chief Executive Officer of Colorado
Corporation) to serve in accordance with the Surviving Entity Articles. The
initial directors and officers of Colorado Corporation prior to the effective
date shall resign their positions as directors and officers of Colorado
Corporation as of the Effective Time.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION OF CAPITAL STOCK,
NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS. At the Effective
Time, 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 Colorado
Corporation, for proportionally equivalent Equity Interests in Colorado
Corporation, shall be as follows:
(a) EXCHANGE OF COLORADO COOPERATIVE MEMBERSHIPS. As of the Effective
Time, 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 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,
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$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, 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, shall cease to exist by operation of the 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, without any further action by the Constituent
Entities or any of their respective members, all Colorado Cooperative
Equity Interests standing on the books of` Colorado Cooperative
immediately after the consummation of the merger of North Dakota
Cooperative with and into Colorado Cooperative, and immediately prior
to the Effective Time 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 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 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 CUMULATIVE PREFERRED STOCK. Each share
of Series A 6% Redeemable 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 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 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 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 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
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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 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 shall be
converted into one (1) share of Common Stock, $.01 par value per share,
of Colorado Corporation.
(f) COLORADO CORPORATION EQUITY INTERESTS. Prior to the Effective Time,
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, 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 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, 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. EFFECTIVE DATE. The Colorado Corporation Merger shall become
effective immediately after later to occur of the following: (i) the
effectiveness of the merger of the North Dakota Cooperative with and into
Colorado Cooperative; and (ii) the of 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 Colorado Cooperative and Colorado
Corporation, as of the date first set forth above.
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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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DAKOTA GROWERS CORPORATION
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
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Its: Chairman
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