EXHIBIT 2.3
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TRANSACTION AGREEMENT
by and among
MINNESOTA CORN PROCESSORS, INC.
a Minnesota cooperative association
and
MINNESOTA CORN PROCESSORS COLORADO,
a Colorado cooperative association
and
MINNESOTA CORN PROCESSORS, LLC
a Colorado limited liability company
Dated as of January 22, 1999
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TABLE OF CONTENTS
ARTICLE I
OVERVIEW OF THE TRANSACTIONS .................................................... 1
Section 1.01 Purpose ............................................................ 1
Section 1.02 The MCP Merger ..................................................... 1
Section 1.03 The LLC Merger ..................................................... 2
Section 1.04 The Closing ........................................................ 2
Section 1.05 Actions at the Closing ............................................. 2
Section 1.06 Effective Time ..................................................... 2
Section 1.07 Effect of the Mergers .............................................. 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE ............................... 3
Section 2.01 Representations and Warranties of the Cooperative .................. 3
Section 2.02 Organization and Good Standing ..................................... 3
Section 2.03 Capital Stock and Equity Participation Units ....................... 3
Section 2.04 Financial Statements ............................................... 4
Section 2.05 Undisclosed Liabilities ............................................ 4
Section 2.06 Compliance with Applicable Laws .................................... 4
Section 2.07 Legal Proceedings .................................................. 4
Section 2.08 Absence of Defaults ................................................ 4
Section 2.09 Authorization ...................................................... 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MCP COLORADO .................................. 5
Section 3.01 Representations and Warranties of MCP Colorado ..................... 5
Section 3.02 Organization and Good Standing ..................................... 5
Section 3.03 Capital Stock ......................................................
Section 3.04 Authorization ...................................................... 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LLC ........................................... 6
Section 4.01 Representations and Warranties of LLC .............................. 6
Section 4.02 Organization and Good Standing ..................................... 6
Section 4.03 Capital Stock ...................................................... 6
Section 4.04 Authorization ...................................................... 7
ARTICLE V
COVENANTS ....................................................................... 7
Section 5.01 Reasonable Best Efforts ............................................ 7
Section 5.02 Conduct of Business ................................................ 8
Section 5.03 Forbearances ....................................................... 8
Section 5.04 Meetings of Members ................................................ 9
Section 5.05 Access ............................................................. 9
Section 5.06 Notice of Developments ............................................. 9
Section 5.07 Exclusivity ........................................................ 9
Section 5.08 Registration Statement ............................................. 9
ARTICLE VI
CONDITIONS PRECEDENT ............................................................ 10
Section 6.01 Conditions to Obligations of Each Party to the MCP Merger .......... 10
Section 6.02 Conditions to Obligations of Each Party to the LLC Merger .......... 10
Section 6.03 Additional Conditions to Obligation of the Cooperative ............. 11
Section 6.04 Additional Conditions to Obligation of MCP Colorado ................ 12
Section 6.05 Additional Conditions to Obligation of LLC ......................... 12
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ARTICLE VII
POST CLOSING AGREEMENTS ................................................... 13
Section 7.01 Employee Benefit Plans ....................................... 13
Section 7.02 Patronage Distributions ...................................... 13
Section 7.03 1996 Loss Payable ............................................ 13
Section 7.04 Indemnification; Directors' and Officers' Insurance .......... 13
ARTICLE VIII
TERMINATION ............................................................... 14
Section 8.01 Termination of Agreement ..................................... 14
Section 8.02 Effect of Termination ........................................ 14
ARTICLE IX
MISCELLANEOUS ............................................................. 14
Section 9.01 Waiver ....................................................... 14
Section 9.02 Amendment .................................................... 15
Section 9.03 Binding Nature ............................................... 15
Section 9.04 Counterparts ................................................. 15
Section 9.05 Entire Agreement ............................................. 15
Section 9.06 Notices ...................................................... 15
Section 9.07 Nonsurvival of Representations and Warranties ................ 16
Section 9.08 Captions ..................................................... 16
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TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT ( "Agreement") is made and entered into as of
January 22, 1999, by and among MINNESOTA CORN PROCESSORS, a Minnesota
cooperative association (the "Cooperative"), MINNESOTA CORN PROCESSORS COLORADO,
a Colorado cooperative association ("MCP Colorado") and MINNESOTA CORN
PROCESSORS, LLC, a Colorado limited liability company ("LLC").
WHEREAS, the Cooperative, MCP Colorado, and LLC are each organized to
benefit and serve their respective members and patrons; and
WHEREAS, the parties believe the interests of their respective members will
best be benefitted and served if the parties reorganize their business
operations and corporate structure whereby: (i) the Cooperative will merge into
MCP Colorado, with MCP Colorado being the surviving entity (the "MCP Merger");
and (ii) MCP Colorado will then merge into LLC, with LLC being the surviving
entity (the "LLC Merger"); the MCP Merger and the LLC Merger may be referred to
in this Agreement individually as a "Merger" or "Transaction" and collectively
as the "Mergers" or "Transactions"; and
WHEREAS, the parties have now agreed on the final terms and conditions of
the Mergers, and wish to: (i) memorialize these agreements as more particularly
described herein; and (ii) enter into this Agreement for the purpose of
effecting the Mergers;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
OVERVIEW OF THE TRANSACTIONS
SECTION 1.01. PURPOSE. The purpose of the transactions contemplated by this
Agreement is to reorganize the corporate structure of the Cooperative from a
Minnesota cooperative association into a Colorado limited liability company.
This reorganization will be accomplished through a two-step merger process.
First, the Cooperative shall merge with and into Cooperative Colorado. Second,
Cooperative Colorado will merge with and into LLC. The MCP Merger and the LLC
Merger are separate and distinct transactions, and each Merger shall be
individually consummated. Although the Mergers are separate transactions,
consummation of the LLC Merger is contingent upon consummation of the MCP
Merger. Upon completion of both Mergers, the Cooperative and MCP Colorado will
cease to exist and LLC will continue as the sole surviving entity.
SECTION 1.02 THE MCP MERGER. Subject to the terms and conditions set forth
in this Agreement and the Plan of Merger attached hereto as Exhibit A (the "MCP
Merger Agreement), the Cooperative will merge with and into MCP Colorado. MCP
Colorado shall be the surviving entity (the "Surviving Colorado Entity").
Immediately after completion of the MCP Merger and without any further action by
its board of directors and members, MCP Colorado, as the Surviving Colorado
Entity, shall merge with and into LLC as described in Section 1.03 hereof.
SECTION 1.03 THE LLC MERGER. Subject to the terms and conditions set forth
in this Agreement and the Plan of Merger attached hereto as Exhibit B (the "LLC
Merger Agreement), MCP Colorado will merge with and into LLC. LLC shall be the
surviving entity (the "Surviving Entity"), and thereafter shall continue to
exist and operate as Minnesota Corn Processors, LLC under the laws of the State
of Colorado.
SECTION 1.04 THE CLOSING. The closing of the Mergers (the "Closing") will
take place on the date the Effective Time occurs at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or on such
other date and/or at such other place as the parties may agree.
SECTION 1.05 ACTIONS AT THE CLOSING. At the Closing, the parties shall
take the following actions:
(a) MCP Merger. The Cooperative and MCP Colorado shall (i) execute the
MCP Merger Agreement, (ii) execute and deliver to each other the various
certificates, instruments, and documents
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referred to in the MCP Merger Agreement, and (iii) execute and file with the
Secretary of State of the States of Minnesota and Colorado articles of merger as
required by the laws of the States of Minnesota and Colorado to effectuate the
merger in accordance with the terms of the MCP Merger Agreement.
(b) LLC Merger. MCP Colorado and LLC shall (i) execute the LLC Merger
Agreement, (ii) execute and deliver to each other the various certificates,
instruments, and documents referred to in the LLC Merger Agreement, and (iii)
execute and file with the Colorado Secretary of State a statement of merger as
required by the laws of the State of Colorado to effectuate the merger in
accordance with the terms of the LLC Merger Agreement.
SECTION 1.06 EFFECTIVE TIME. Each of the Mergers shall become effective on
the date on which the articles of merger and statement of merger have been duly
filed in the respective offices of the Minnesota and Colorado Secretary of State
as required by law (the "Effective Time"). At any time after the Effective Time,
LLC as the Surviving Entity may take any action (including executing and
delivering any document) in the name and on behalf of any party to this
Agreement in order to carry out and effectuate the transactions contemplated by
this Agreement.
SECTION 1.07 EFFECT OF THE MERGERS.
(a) Articles of Organization and Operating Agreement. The Articles of
Organization of LLC attached hereto as Exhibit C and the Operating Agreement of
LLC attached hereto as Exhibit D shall become the Articles of Organization and
the Operating Agreement of the Surviving Entity.
(b) Directors and Officers. The officers and directors of the Cooperative
at the Effective Time shall, from and after the Effective Time, be the directors
and officers of LLC (the "LLC Directors and Officers") to serve until their
respective terms have expired and their successors have been duly elected and
qualified in accordance with the terms of LLC's Operating Agreement. The terms
of the LLC Directors and Officers shall expire on the date each such director's
or officer's term would have expired under Article III Section 1 of the
Cooperative's Amended and Restated Bylaws had the Mergers not occurred. At the
Effective Time, the initial directors and officers of MCP Colorado and LLC
immediately prior to the Effective Time shall resign as directors and officers
of MCP Colorado and LLC, respectively.
(c) Stock and Units of Equity Participation. At the Effective Time,
without any further action by the parties or any of their respective members,
and as further described in the MCP Merger Agreement and the LLC Merger
Agreement:
(i) Each member of the Cooperative prior to the Effective Time shall
first become a member of MCP Colorado as a result of the MCP Merger and then
shall automatically become a member of LLC as the Surviving Entity upon
consummation of the LLC Merger; and
(ii) Upon consummation of the MCP Merger, (1) the stock and units of
equity participation held by each member and each nonmember of the
Cooperative shall be automatically converted into like forms and amounts
(on a one-for-one basis) of stock and units of equity participation of MCP
Colorado and (2) all stock of MCP Colorado owned by the Cooperative shall
be cancelled without payment of any consideration therefor. Upon
consummation of the LLC Merger, (1) each unit of equity participation of
MCP Colorado shall automatically be converted into one Class A Unit (for
voting members) or one Class B Unit (for nonvoting members) of LLC and (2)
each outstanding share of common stock of MCP Colorado shall be cancelled.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE
SECTION 2.01. REPRESENTATIONS AND WARRANTIES OF THE COOPERATIVE. The
Cooperative represents and warrants to MCP Colorado that the statements
contained in this Article II are correct and complete in all material respects
as of the date of this Agreement, except as set forth in the Cooperative
Disclosure Schedule delivered by the Cooperative to MCP Colorado attached hereto
(the "Cooperative Disclosure Schedule").
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SECTION 2.02 ORGANIZATION AND GOOD STANDING. The Cooperative is a
cooperative association duly organized and existing under Chapter 308A of the
Minnesota Statutes (as amended, the "Cooperative Act"), is in good standing
under the laws of the State of Minnesota, and has all requisite corporate power
and authority to own its properties and conduct its business as it is presently
being conducted. The Cooperative is duly qualified to do business and is in good
standing in each jurisdiction in which it conducts business or owns or leases
properties of a nature which would require such qualification.
SECTION 2.03 CAPITAL STOCK AND EQUITY PARTICIPATION UNITS. As of the date
hereof, the authorized capital stock of the Cooperative consists solely of
100,000 shares of common stock, of which 28,321 are issued and outstanding, and
100,000 shares of preferred stock, none of which are issued and outstanding. A
total of 195,696,031 units of equity participation (voting and nonvoting) are
issued and outstanding. The outstanding shares of common stock and units of
equity participation have been duly authorized and are validly issued and
outstanding.
SECTION 2.04 FINANCIAL STATEMENTS. The Cooperative has delivered to MCP
Colorado its audited financial statements as of March 31, 1998, accompanied by
the opinion of Clifton, Gunderson, LLC and its unaudited financial statements as
of September 30, 1998, certified by the Treasurer of the Cooperative. Such
financial statements fairly present the financial position of the Cooperative at
the dates indicated therein and the results of its operation for the periods
indicated therein, in conformity with generally accepted accounting principles
consistently applied. There has been no material adverse change in the financial
condition or results of operations of the Cooperative since the date of such
financial statements.
SECTION 2.05 UNDISCLOSED LIABILITIES. Except for those liabilities
reflected in the financial statements referred to in Section 2.04 and for
liabilities incurred in the ordinary course of business since September 30,
1998, the Cooperative has not incurred a liability that, either individually or
in the aggregate, has had or will have a material adverse effect on the
Cooperative.
SECTION 2.06 COMPLIANCE WITH APPLICABLE LAWS. The Cooperative is in
compliance with all applicable laws and regulations the violation of which would
have a material adverse effect on the Cooperative or on its business as
currently conducted. The Cooperative has all material licenses and permits
required by law or otherwise necessary for the proper operation of its business
as currently conducted, all of such licenses and permits are in full force and
effect, and no action to terminate, withdraw, not renew or materially limit or
otherwise change any such license or permit is pending or has been threatened by
any governmental agency or other party.
SECTION 2.07 LEGAL PROCEEDINGS. There is no material action, proceeding or
investigation by any administrative or regulatory body or other person which has
been commenced or is pending, or to the best of the Cooperative's knowledge
after reasonable inquiry, is threatened against the Cooperative or any of the
assets which are owned by the Cooperative.
SECTION 2.08 ABSENCE OF DEFAULTS. The Cooperative is not in any material
respect in default under any provision of its Articles of Incorporation or
Bylaws or any material indenture, mortgage, loan agreement or other material
agreement to which it is a party or by which it is bound, and the Cooperative is
not in violation of any statute, order, rule or regulation of any court or
governmental agency having jurisdiction over it or its properties which if
enforced could have a material adverse effect on its business, and except for
any consent or approval identified on Exhibit E attached hereto, neither the
execution and delivery of this Agreement nor the consummation of the
Transactions in accordance with this Agreement will in any material respect
conflict with or result in a breach of any of the foregoing, which if enforced
could have a material adverse effect on its business.
SECTION 2.09 AUTHORIZATION. The Cooperative has the corporate power and
authority to execute and to perform its obligations under this Agreement
(subject to the approval of its members as required by Section 6.01(a)). This
Agreement and the Transaction have been duly and validly authorized by the Board
of Directors of the Cooperative, and, except for the approval of its members as
required by Section 6.01(a), no other corporate action is required by the
Cooperative in connection with this Agreement or the Transaction. This Agreement
constitutes the valid and binding agreement of the Cooperative, enforceable
against the Cooperative in accordance with its terms, except to the extent such
enforcement may be limited by the application of equitable principles where
equitable relief is sought or bankruptcy and other laws relating to the
enforcement of creditors, rights generally.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MCP COLORADO
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF MCP COLORADO. MCP Colorado
represents and warrants to the Cooperative and LLC that the statements contained
in this Article III are correct and complete in all material respects as of the
date of this Agreement, except as set forth in the MCP Colorado Disclosure
Schedule attached hereto (the "MCP Colorado Disclosure Schedule").
SECTION 3.02 ORGANIZATION AND GOOD STANDING. MCP Colorado is a cooperative
association duly organized and existing under the Colorado Cooperative Act, is
in good standing under the laws of the State of Colorado, and has all requisite
corporate power and authority to own its properties and conduct its business as
it is presently being conducted. MCP Colorado is duly qualified to do business
and is in good standing in each jurisdiction in which it conducts business or
owns or leases properties of a nature which would require such qualification.
SECTION 3.03 CAPITAL STOCK. As of the date hereof, the authorized capital
stock of MCP Colorado consists of 100,000 shares of common stock, of which one
share is issued and outstanding, and 100,000 shares of preferred stock, of which
none are issued and outstanding.
SECTION 3.04 AUTHORIZATION. MCP Colorado has the corporate power and
authority to execute and to perform its obligations under this Agreement
(subject to the approval of its members as required by Sections 6.01(b) and
6.02(a)). This Agreement and the Transaction have been duly and validly
authorized by the Board of Directors of MCP Colorado, and except for the
approvals of its members and defined members as required by Sections 6.01(b) and
6.02(a) no other corporate action is required by MCP Colorado in connection with
this Agreement or the Transactions. This Agreement constitutes the valid and
binding agreement of MCP Colorado, enforceable against MCP Colorado in
accordance with its terms, except to the extent such enforcement may be limited
by the application of equitable principles where equitable relief is sought or
bankruptcy and other laws relating to the enforcement of creditors, rights
generally.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LLC
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF LLC. LLC represents and
warrants to MCP Colorado that the statements contained in this Article IV are
correct and complete in all material respects as of the date of this Agreement,
except as set forth in the LLC Disclosure Schedule delivered by LLC to MCP
Colorado attached hereto (the "LLC Disclosure Schedule").
SECTION 4.02 ORGANIZATION AND GOOD STANDING. LLC is a limited liability
company duly organized and existing under the Colorado Limited Liability Company
Act, is in good standing under the laws of the State of Colorado, and has all
requisite corporate power and authority to own its properties and conduct its
business as it is presently being conducted. LLC is duly qualified to do
business and is in good standing in each jurisdiction in which it conducts
business or owns or leases properties of a nature which would require such
qualification.
SECTION 4.03 CAPITAL STOCK. As of the date hereof, the authorized capital
stock of LLC consists of 350,000,000 Class A units and 150,000,000 Class B
units, of which none are issued and outstanding, respectively.
SECTION 4.04 AUTHORIZATION. LLC has the corporate power and authority to
execute and to perform its obligations under this Agreement. This Agreement and
the Transaction have been duly and validly authorized by the Board of Directors
of LLC, and, except for the approval of its members as required by Section
6.02(b), no other corporate action is required by LLC in connection with this
Agreement or the Transaction. This Agreement constitutes the valid and binding
agreement of LLC, enforceable against LLC in accordance with its terms, except
to the extent such enforcement may be limited by the application of equitable
principles where equitable relief is sought or bankruptcy and other laws
relating to the enforcement of creditors, rights generally.
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ARTICLE V
COVENANTS
SECTION 5.01 REASONABLE BEST EFFORTS. Each party agrees to cooperate with
the other parties hereto and to use its reasonable best efforts in good faith to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or desirable, or advisable under applicable laws, so as
to permit consummation of the Mergers as promptly as practicable. In addition,
each party shall cooperate and use its reasonable best efforts to prepare all
documentation, to effect all filings and to obtain all permits, consents,
approvals and authorizations of all third parties necessary to consummate the
Transactions contemplated by this Agreement.
SECTION 5.02 CONDUCT OF BUSINESS. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated by this
Agreement, each of the Cooperative and MCP Colorado shall conduct its business
in the ordinary course and in a manner consistent with its past practices
(except as expressly contemplated hereby), and shall use good faith efforts to
preserve intact its business organization, properties (except as they may be
sold, used or otherwise disposed of in the ordinary course) and the good will of
its members, suppliers, customers and others having business relationships with
it.
SECTION 5.03 FORBEARANCES. During the period from the date of this
Agreement to the Effective Time, except as expressly contemplated by this
Agreement, without the prior consent of the other party to this Agreement,
neither party shall:
(a) grant to any person any option or other right to acquire capital
stock or other equity interests, except for allocation of patronage equities in
a manner consistent with past practice;
(b) issue any additional shares or units of capital stock and other
equity interests, except in the ordinary course of business and consistent with
past practice;
(c) enter into, amend or terminate any material contract, lease or
understanding;
(d) amend its Articles of Incorporation or Articles of Organization, as
the case may be, its Bylaws or Operating Agreement, as the case may be, or any
board policies;
(e) incur any indebtedness for borrowed money or make any commitment to
borrow money, except indebtedness incurred in the ordinary course of business
pursuant to credit arrangements existing as of the date of this Agreement
(including any renewals thereof);
(f) make any material capital expenditures other than in the ordinary
course of business or which were disclosed to the other party;
(g) mortgage any of its assets or properties, or except in the ordinary
course of business, sell any of its material assets or properties;
(h) pay any dividends or make any distributions with respect to its
capital stock or equity interests, except in the ordinary course of business;
(i) reclassify, combine, subdivide, split, or amend its capital stock or
equity interests;
(j) purchase, acquire or redeem any shares of its capital stock or equity
interests, except in the ordinary course of business; or
(k) agree or commit to do any of the foregoing.
SECTION 5.04 MEETINGS OF MEMBERS. Each of the Cooperative and MCP Colorado
will take all steps necessary to call an appropriate meeting of its respective
members, for the purpose of considering and voting on this Agreement and its
respective Merger in accordance with its respective Articles of Incorporation,
Bylaws and applicable law.
SECTION 5.05 ACCESS. Each party will permit the authorized representatives
of the other parties to have full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations of such party,
to all premises, properties, personnel, books, records (including tax records),
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contracts, and documents of or pertaining to such party, and will furnish them
such additional financial and operating data and other information concerning
its business and properties as such other parties may from time to time
reasonably request. Each of the parties will use their best efforts to cause all
confidential information obtained by it from the other parties to be treated as
such, will also use its best efforts not to use such information in a manner
detrimental to such party and, if for any reason the Transactions are not
consummated, will promptly return all documents, papers, books, records and
other materials (and all copies thereof) obtained in the course of its
investigation and evaluation.
SECTION 5.06 NOTICE OF DEVELOPMENTS. Each party will give prompt written
notice to the other of any material adverse development causing a breach of any
of its own representations and warranties contained herein. Except as specified
in such written notice, no disclosure by a party pursuant to this Section 5.06
shall be deemed to amend or supplement such party's Disclosure Schedule or to
prevent or cure any misrepresentation, breach of warranty, or breach of
covenant.
SECTION 5.07 EXCLUSIVITY. Except for the Transactions contemplated by this
Agreement, none of the parties will (i) solicit, initiate, or encourage the
submission of any proposal or offer from any person relating to the acquisition
of any capital stock or other voting securities, or any substantial portion of
the assets, of such party (including any acquisition structured as a merger,
consolidation, or share exchange) or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing. Each party will notify the other
party immediately if any person makes any proposal, offer, inquiry, or contact
with respect to any of the foregoing.
SECTION 5.08 REGISTRATION STATEMENT. LLC shall promptly prepare and file
with the SEC a Registration Statement on Form S-4 (the "Registration Statement")
in connection with the issuance of Class A and Class B units in the LLC Merger.
The parties shall use their reasonable best efforts to have the Registration
Statement declared effective under the Securities Act of 1933 (the "Securities
Act") as promptly as practicable after such filing, and the parties shall
thereafter mail or deliver the Information Statement Prospectus, which
constitutes a part of the Registration Statement, to their respective members.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE MCP MERGER. The
respective obligations of the Cooperative and MCP Colorado to consummate the MCP
Merger and other matters described in this Agreement, are subject to the
satisfaction or waiver of each of the following conditions on or before the
Effective Time, except that condition (f) must be satisfied and cannot be waived
by either party:
(a) The members of the Cooperative shall have approved this Agreement and
the MCP Merger Agreement, all in accordance with the requirements of applicable
law and the Articles of Incorporation and Bylaws of the Cooperative;
(b) The members of MCP Colorado shall have approved the MCP Merger
Agreement and this Agreement all in accordance with the requirements of
applicable law and the Articles of Incorporation and Bylaws of MCP Colorado;
(c) No injunction, restraining order or order of any nature issued by any
court of competent jurisdiction, government or governmental agency enjoining the
Transaction shall have been issued and remain in effect;
(d) All consents, approvals and waivers which are necessary in connection
with the Transactions, or any part thereof, shall have been obtained, including
the consents and approvals referred to in Exhibits E and F attached hereto;
(e) No action shall have been threatened or instituted by any
governmental agency or any other person challenging the legality of the
Transactions, seeking to prevent or delay consummation of
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the Transactions or seeking to obtain divestiture or other relief in the event
of consummation of the Transactions. It is understood in the event that such an
action is threatened or instituted, the parties will first attempt for a period
of 90 days to obtain dismissal or other favorable resolution of such threatened
or actual action prior to exercise of their right to terminate hereunder;
(f) The members of MCP Colorado shall have approved the LLC Merger
Agreement and this Agreement as set forth in Section 6.02(a); and
(g) The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC.
SECTION 6.02 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO THE LLC MERGER. The
respective obligations of MCP Colorado and LLC to consummate the LLC Merger and
other matters described in this Agreement, are subject to the satisfaction or
waiver of each of the following conditions on or before the Effective Time,
except that condition (f) must be satisfied and cannot be waived by either
party:
(a) The members of MCP Colorado shall have approved this Agreement and
the LLC Merger Agreement, all in accordance with the requirements of applicable
law and the Articles of Incorporation and Bylaws of MCP Colorado;
(b) No injunction, restraining order or order of any nature issued by any
court of competent jurisdiction, government or governmental agency enjoining the
Transaction shall have been issued and remain in effect;
(c) All consents, approvals and waivers which are necessary in connection
with the Transactions, or any part thereof, shall have been obtained, including
the consents and approvals referred to in Exhibits E and F attached hereto;
(d) No action shall have been threatened or instituted by any
governmental agency or any other person challenging the legality of the
Transactions, seeking to prevent or delay consummation of the Transactions or
seeking to obtain divestiture or other relief in the event of consummation of
the Transactions. It is understood in the event that such an action is
threatened or instituted, the parties will first attempt for a period of 90 days
to obtain dismissal or other favorable resolution of such threatened or actual
action prior to exercise of their right to terminate hereunder;
(e) The members of the Cooperative and MCP Colorado shall have approved
the MCP Merger Agreement and this Agreement as set forth in Section 6.01(a) and
6.01(b), and the MCP Merger should be consummated; and
(f) The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC.
SECTION 6.03 ADDITIONAL CONDITIONS TO OBLIGATION OF THE COOPERATIVE. The
obligation of the Cooperative to consummate the MCP Merger is subject to the
satisfaction or waiver of each of the following additional conditions at or
before the Effective Time:
(a) The representations and warranties of MCP Colorado contained in this
Agreement shall be true and correct in all material respects as of the Effective
Time as though such representations and warranties were made on and as of the
Effective Time, and MCP Colorado shall have performed in all material respects
all obligations required to be performed by it under this Agreement and the MCP
Merger Agreement prior to the Effective Time;
(b) The Cooperative shall have received a certificate, dated as of the
Effective Time, and executed by the President of MCP Colorado, certifying in
such detail as the Cooperative may reasonably request as to the accuracy of such
representations and warranties, the fulfillment of such obligations, compliance
with such covenants and satisfaction of the conditions to the Cooperative's
obligation as of the Effective Time; and
(c) All actions, proceedings and documents necessary to carry out the
Transactions (including, without limitation, the MCP Colorado Disclosure
Schedule) shall be reasonably satisfactory to the Cooperative.
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SECTION 6.04 ADDITIONAL CONDITIONS TO OBLIGATION OF MCP COLORADO. The
obligation of MCP Colorado to consummate the MCP Merger and the LLC Merger is
subject to the satisfaction or waiver of each of the following additional
conditions at or before the Effective Time:
(a) The representations and warranties of the Cooperative and LLC
contained in this Agreement shall be true and correct in all material respects
as of the Effective Time as though such representations and warranties were made
on and as of the Effective Time, and the Cooperative and LLC shall have
performed in all material respects all of their respective obligations required
to be performed by each of them under this Agreement, the MCP Merger Agreement,
and the LLC Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known to
MCP Colorado after the date hereof that alone, or together with all other facts,
events or circumstances, has had or is reasonably likely to have a material
adverse effect on the Cooperative or the Surviving Entity;
(c) MCP Colorado shall have received a certificate, from each of the
Cooperative and LLC dated as of the Effective Time, executed by their
Presidents, certifying in such detail as MCP Colorado may reasonably request as
to the accuracy of their representations and warranties, the fulfillment of
their obligations, compliance with their covenants and satisfaction of the
conditions to MCP Colorado's obligations as of the Effective Time; and
(d) All actions, proceedings and documents necessary to carry out the
Transaction (including, without limitation, the Cooperative Disclosure Schedule
and LLC Disclosure Schedule) shall be reasonably satisfactory to MCP Colorado.
SECTION 6.05 ADDITIONAL CONDITIONS TO OBLIGATION OF LLC. The obligation of
LLC to consummate the LLC Merger is subject to the satisfaction or waiver of
each of the following additional conditions at or before the Effective Time:
(a) The representations and warranties of MCP Colorado contained in this
Agreement shall be true and correct in all material respects as of the Effective
Time as though such representations and warranties were made on and as of the
Effective Time, and MCP Colorado shall have performed in all material respects
all obligations required to be performed by it under this Agreement and the LLC
Merger Agreement prior to the Effective Time;
(b) No fact, event or circumstance shall have occurred or become known to
LLC after the date hereof that alone, or together with all other facts, events
or circumstances, has had or is reasonably likely to have a material adverse
effect on MCP Colorado;
(c) LLC shall have received a certificate, dated as of the Effective
Time, and executed by the President of MCP Colorado, certifying in such detail
as LLC may reasonably request as to the accuracy of such representations and
warranties, the fulfillment of such obligations, compliance with such covenants
and satisfaction of the conditions to LLC's obligation as of the Effective Time;
and
(d) All actions, proceedings and documents necessary to carry out the
Transactions (including, without limitation, the MCP Colorado Disclosure
Schedule) shall be reasonably satisfactory to LLC.
ARTICLE VII
POST CLOSING AGREEMENTS
SECTION 7.01 EMPLOYEE BENEFIT PLANS. From and after the Effective Time, the
employee benefit plans of the Cooperative in effect as of the date of this
Agreement shall remain in effect with respect to employees of the Cooperative
(or their subsidiaries) covered by such plans at the Closing Date until such
time as LLC shall, subject to applicable law and the terms of such plans, adopt
new benefit plans with respect to employees of LLC. LLC agrees to honor in
accordance with their terms all benefits vested as of the date hereof under the
employee benefit plans of the Cooperative. Nothing in this Section 7.01 shall be
interpreted as preventing LLC from amending, modifying or terminating any
employee benefit plan of the Cooperative or other contracts, arrangements,
commitments or understandings, in accordance with their terms and applicable
law.
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SECTION 7.02 PATRONAGE DISTRIBUTIONS. Following the Effective Time and
within the time period required by the various provisions of the Code, the
Surviving Entity will make patronage distributions to the former members of each
party based on patronage transactions with the respective parties during each
party's respective fiscal year or portion thereof immediately preceding the
Effective Time. The patronage distributions shall be in the form of cash and
equity credits in a manner consistent with the previous patronage distributions
of each party (and in the case of equity credits, in the form of Class A Units
or Class B units of LLC, as appropriate).
SECTION 7.03 1996 LOSS PAYABLE. After the Effective Time, the unpaid
portion of the Cooperative's operating loss for the fiscal year ended September
30, 1996 that was assessed against a unit of equity participation of the
Cooperative shall continue as a lien against a Class A unit received in the LLC
Merger.
SECTION 7.04 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. From and
after the Effective Time, the Surviving Entity shall indemnify each present and
former director, officer, employee or agent of the Cooperative or MCP Colorado
and each person who, while a director or officer of the Cooperative and at the
request of the Cooperative, serves or has served another corporation,
cooperative, partnership, joint venture or any other enterprise as a director,
officer or partner, against any losses, claims, damages, liabilities or expenses
(including legal fees) arising out of or pertaining to matters existing or
occurring at or before the Effective Time, whether asserted or claimed prior to,
at or after the Effective Time, to the fullest extent permitted by law. The
Surviving Entity may obtain insurance coverage against any such loss, claim or
expense, subject to standard exclusions and exceptions to coverage, but is not
obligated to do so.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION OF AGREEMENT. This Agreement shall be terminated
and the Transactions abandoned if at any time prior to the Effective Time:
(a) The members of the Cooperative fail to approve the Merger as required
by Section 6.01(a) or the members of MCP Colorado fail to approve the Merger as
required by Sections 6.01(b) and 6.02(a).
(b) The parties mutually agree in writing to terminate this Agreement;
or
(c) Either party to a Merger delivers a written notice to the other, to
the effect that (i) one or more of the conditions to its obligations as set
forth herein cannot be met, (ii) the other party has defaulted in a material
respect under one or more of its covenants or agreements contained herein, or
(iii) any of the representations or warranties of the other party are or have
become materially untrue or incorrect as of the date of such notice, and in any
case such condition or conditions have not been satisfied, such default or
defaults have not been remedied or such representation or warranty has not been
rendered true and correct within thirty (30) days after such notice is mailed;
or
(d) The Closing has not occurred on or before August 1, 1999, or such
later date as the parties may mutually agree upon.
SECTION 8.02 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 8.01 above, all rights and obligations of the parties
hereunder shall terminate without any liability of either party to the other
(except for any liability of a party then in breach); provided, however, that
the confidentiality and return of documents provisions contained in or referred
to Section 5.05 above shall survive any such termination.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 WAIVER. At any time before the Effective Time, any provision
of this Agreement may, to the extent legally allowed, be waived by the party
benefitted by the provision by an agreement in
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writing between the parties hereto executed in the same manner as this
Agreement, except that after approval of the Mergers contemplated by this
Agreement by the respective members of the Cooperative and MCP Colorado, there
may not be any waiver of any provision of this Agreement which would reduce the
amount or form of consideration to be received by members in the Mergers.
SECTION 9.02 AMENDMENT. The parties by mutual consent may amend, modify or
supplement this Agreement in such manner as may be agreed upon in writing;
provided, however, that after approval of the Mergers by the respective members
of the Cooperative and MCP Colorado, this Agreement may not be amended if it
would violate applicable law or reduce the amount or form of the consideration
to be received by members in the Mergers.
SECTION 9.03 BINDING NATURE. This Agreement shall be binding upon and inure
only to the benefit of the parties hereto and their respective successors and
assigns, provided that neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned or delegated by any of the parties
hereto without the prior written consent of the other parties hereto.
SECTION 9.04 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9.05 ENTIRE AGREEMENT. This Agreement, the MCP Merger Agreement,
the LLC Merger Agreement and the other documents referred to herein and therein
set forth the entire understanding of the parties hereto with respect to the
matters provided for herein and therein and supersede all prior agreements,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of either party.
SECTION 9.06 NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if delivered
personally, telecopied (with confirmation) or mailed by certified or registered
mail (return receipt requested), to the parties at the following addresses (or
such other address as such party may specify by like notice):
If to the Cooperative: Minnesota Corn Processors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇ ▇▇▇▇▇▇▇▇
If to MCP Colorado: Minnesota Corn Processors Colorado
---------------------------
---------------------------
---------------------------
Attn:----------------------
If to LLC: Minnesota Corn Processors, LLC
---------------------------
---------------------------
---------------------------
Attn:----------------------
SECTION 9.07 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the parties contained in Articles II, III and
IV of this Agreement shall form the basis for closing conditions only, shall not
survive the Effective Time and shall not form the basis for any action by or on
behalf of either party or any third party for breach, misrepresentation or
indemnity at any time after the Effective Time.
SECTION 9.08 CAPTIONS. The article and section headings of this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
* * * * * * * * * * * * * * * * * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
MINNESOTA CORN PROCESSORS, INC.
By: --------------------------------------
Its: -------------------------------------
MINNESOTA CORN PROCESSORS COLORADO
By: --------------------------------------
Its: -------------------------------------
MINNESOTA CORN PROCESSORS, LLC
By: --------------------------------------
Its: -------------------------------------
EXHIBITS
Exhibit A - MCP Merger Agreement
Exhibit B - LLC Merger Agreement
Exhibit C - Surviving Entity Articles of Organization
Exhibit D - Surviving Entity Operating Agreement
Exhibit E - List of Consents and Approvals
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