EXHIBIT 2.1
PLAN OF COMBINATION
THIS PLAN OF COMBINATION (the "Plan") is dated as of May 29, 1998,
and is by and between CENEX, INC. ("CENEX") and HARVEST STATES COOPERATIVES
("Harvest States"), 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, CENEX and Harvest States each is a cooperative association
organized under Chapter 308A of Minnesota Statutes (as amended, the "Act"); and
WHEREAS, the respective Boards of Directors of CENEX and Harvest
States and the respective members of CENEX and Harvest States each has approved
and adopted this Plan and the transactions contemplated hereby in the manner
required by Section 308A.801 of the Act and their respective Articles of
Incorporation and Bylaws.
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 COMBINATION. On the Effective Time (as defined in
Section 8), CENEX and Harvest States shall combine through merger (the
"Combination") in accordance with the applicable provisions of the Act; and
Harvest States, whose name shall change to "Cenex Harvest States Cooperatives"
and whose Articles of Incorporation and Bylaws each shall be amended and
restated in their entirety as further provided herein, shall be the surviving
cooperative and shall continue to exist by virtue of, and shall be governed by,
the Act.
SECTION 2. ARTICLES OF MERGER. On or before the Effective Time,
CENEX and Harvest States each shall execute articles of merger (the "Articles of
Merger") setting forth the information required by and otherwise in compliance
with Section 308A.801 of the Act. The Articles of Merger shall be filed with the
Secretary of State of the State of Minnesota or as otherwise required by the
Act, and shall provide that the Combination shall become effective on the
Effective Time.
SECTION 3. EFFECT OF COMBINATION. From and after the Effective Time,
without any further action by the Constituent Cooperatives or any of their
respective members: (a) Cenex Harvest States Cooperatives, as the surviving
cooperative in the Combination, 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 Act; (b) Cenex Harvest States Cooperatives,
as the surviving cooperative in the Combination, 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 choses 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 Cenex Harvest States
Cooperatives, 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 Combination; (c) Cenex Harvest States
Cooperatives 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 Combination had not taken place or Cenex Harvest States Cooperatives 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 Combination; and (e) the Combination shall have any other effect set forth
in the Act and the transaction agreement dated January 29, 1998, by and between
CENEX and Harvest States (the "Transaction Agreement"); all with the effect and
to the extent provided in the applicable provisions of the Act.
SECTION 4. ARTICLES OF INCORPORATION; BYLAWS. From and after the
Effective Time, pursuant to the Articles of Merger and without any further
action by the Constituent Cooperatives or any of their respective members, (a)
the name of Harvest States, as the surviving cooperative in the Combination,
shall be changed to "Cenex Harvest States Cooperatives" and (b) the Articles of
Incorporation of Cenex Harvest States Cooperatives, as the surviving cooperative
in the Combination, shall be amended and restated in their entirety to read as
set forth in Exhibit 1 attached hereto and made a part hereof (the "Surviving
Entity Articles"). From and after the Effective Time, without any further action
by the Constituent Cooperatives or any of their respective members, the Bylaws
of Cenex Harvest States Cooperatives, as the surviving cooperative in the
Combination, shall be amended and restated in their entirety to read as set
forth in Exhibit B attached to the Transaction Agreement (the "Surviving Entity
Bylaws"), and a copy of which was provided to the respective members of each
Constituent Cooperative in connection with their consideration of the
Combination.
SECTION 5. BOARD OF DIRECTORS. From and after the Effective Time,
without any further action by the Constituent Cooperatives or any of their
respective members, each person serving as a director of one of the Constituent
Cooperatives immediately prior to the Effective Time shall become a director of
Cenex Harvest States Cooperatives, as the surviving cooperative in the
Combination, to serve in accordance with the Surviving Entity Bylaws.
SECTION 6. EXCHANGE, REDESIGNATION AND CONVERSION AND CONTINUATION
OF CAPITAL STOCK, NON-STOCK EQUITY INTERESTS, PATRONS' EQUITIES AND MEMBERSHIPS.
On the Effective Time, the manner and basis of exchanging and continuing the
shares of capital stock, non-stock equity interests, patronage equity interests
(including all entitlements to patronage refunds), any other allocated equity
interests, and unallocated and capital reserves of CENEX and Harvest States (all
such interests referred to herein as "CENEX Equity Interests" or "Harvest States
Equity Interests", respectively), and membership interests in CENEX and Harvest
States, for equal Equity Interests and membership interests in Cenex Harvest
States Cooperatives, shall be as follows:
(a) EXCHANGE AND CONTINUATION OF CENEX MEMBERSHIPS. As
of the Effective Time, without any further action by the Constituent
Cooperatives or any of their respective members, each holder of
common stock of CENEX shall become and be a member of Cenex Harvest
States Cooperatives, 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) CONTINUATION OF HARVEST STATES MEMBERSHIPS. As of
the Effective Time, without any further action by the Constituent
Cooperatives or any of their
respective members, each member of Harvest States shall be and
continue as a member of Cenex Harvest States Cooperatives, 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.
(c) EXCHANGE AND CONTINUATION OF CENEX EQUITY INTERESTS.
As of the Effective Time, without any further action by the
Constituent Cooperatives or any of their respective members, all
Equity Interests standing on the books of CENEX immediately prior to
the Effective Time shall be determined and exchanged for equal
Equity Interests in Cenex Harvest States Cooperatives AT ITS STATED
DOLLAR AMOUNT ON A DOLLAR-FOR-DOLLAR BASIS, including as follows:
(i) Common Stock. Each share of common stock
of CENEX issued and outstanding or otherwise standing on
the books of CENEX immediately prior to the Effective
Time shall be exchanged for one (1) Capital Equity
Certificate of Cenex Harvest States Cooperatives in a
face amount of $25.00, and in such denominations or
other designations or series so as to preserve the year
of issue (as Cenex Harvest States Cooperatives deems
necessary) and other terms and conditions of the
original issuance.
(ii) Preferred Stock. Each whole share or
fractional share of preferred stock of CENEX issued and
outstanding or otherwise standing on the books of CENEX
immediately prior to the Effective Time shall be
exchanged for a Capital Equity Certificate of Cenex
Harvest States Cooperatives in a face amount of $25.00
or fractional amount thereof to reflect the stated
dollar amount on a dollar-for-dollar basis exchange of
such interest, and in such denominations or other
designations or series so as to preserve the year of
issue (as Cenex Harvest States Cooperatives deems
necessary) and other terms and conditions of the
original issuance.
(iii) Patronage Equity Interests. All
patronage refunds and any other allocated or to be
allocated equity interests (including all entitlements
to patronage refunds) standing on the books of CENEX
immediately prior to the Effective Time which are not
otherwise evidenced by preferred stock shall be
exchanged for equal patronage refunds, allocated or to
be allocated equity interests, entitlements to patronage
refunds, or other equal equity interests on the books of
Cenex Harvest States Cooperatives, 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 Cenex Harvest States
Cooperatives deems necessary) and other terms and
conditions of the original issuance.
(iv) Deferred Patronage and Unallocated
Reserve. All deferred patronage (not exchanged above),
unallocated reserves, and any other unallocated equity
interests standing on the books of CENEX immediately
prior to the Effective Time shall be exchanged and
credited for equal
deferred patronage, unallocated reserves or other equal
unallocated equity interests on the books of Cenex
Harvest States Cooperatives, 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 (if applicable and as Cenex
Harvest States Cooperatives deems necessary) and other
terms and conditions of the original issuance (if
applicable).
(v) Net Effect. The net effect of the
exchange of CENEX Equity Interests for equal Equity
Interests in Cenex Harvest States Cooperatives shall be
that the holders of CENEX Equity Interests standing on
the books of CENEX immediately prior to the Effective
Time shall hold and will have equal Equity Interests in
Cenex Harvest States Cooperatives immediately following
the Effective Time, in terms of stated dollar amount on
a dollar-for-dollar basis, year of issue (as determined
necessary) and any other rights and preferences, and
that the deferred patronage, unallocated reserves and
other unallocated Equity Interests of CENEX, as standing
on its books immediately prior to the Effective Time,
shall be exchanged and credited for an equal Equity
Interest in Cenex Harvest States Cooperatives
immediately following the Effective Time, in terms of
stated dollar amount on a dollar-for-dollar basis and
other rights and preferences; provided, however, that,
notwithstanding the foregoing, the Equity Interests in
CENEX that are held by Harvest States immediately prior
to the Effective Time shall be treated in accordance
with generally accepted accounting principles.
(d) CONTINUATION OF HARVEST STATES EQUITY INTERESTS. As
of the Effective Time, without any further action by the Constituent
Cooperatives or any of their respective members, all Equity
Interests standing on the books of Harvest States immediately prior
to the Effective Time shall be determined and continued as equal
Equity Interests in Cenex Harvest States Cooperatives AT ITS STATED
DOLLAR AMOUNT ON A DOLLAR-FOR-DOLLAR BASIS, including as follows:
(i) Equity Participation Units. Each Equity
Participation Unit of Harvest States issued and
outstanding or otherwise standing on the books of
Harvest States immediately prior to the Effective Time,
including without limitation all Wheat Milling EPUs and
all Oilseed Processing & Refining EPUs, shall continue
to be issued and outstanding Equity Participation Units
of Cenex Harvest States Cooperatives, at their stated
dollar amount on a dollar-for-dollar basis, along with
the other terms and conditions of the original issuance.
(ii) Patronage Equity Interests. All
patronage certificates and any other allocated or to be
allocated patronage equity interests (including all
entitlements to patronage refunds) standing on the books
of Harvest States immediately prior to the Effective
Time, including without limitation all Capital Equity
Certificates, Certificates of Indebtedness, and
Preferred Capital Certificates, shall continue to be
equal patronage certificates, allocated or to be
allocated patronage equity interests, entitlements to
patronage refunds, or other equal patronage equity
interests on the books of Cenex Harvest States
Cooperatives, 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 Cenex Harvest States Cooperatives deems
necessary) and other terms and conditions of the
original issuance.
(iii) Nonpatronage Equity Interests. All
nonpatronage certificates and any other allocated or to
be allocated nonpatronage equity interests (including
all entitlements to nonpatronage refunds) standing on
the books of Harvest States immediately prior to the
Effective Time, including without limitation all
Non-Patronage Earnings Certificates, shall continue to
be equal nonpatronage certificates, allocated or to be
allocated nonpatronage equity interests, entitlements to
nonpatronage refunds, or other equal nonpatronage equity
interests on the books of Cenex Harvest States
Cooperatives, 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 Cenex Harvest States Cooperatives deems
necessary) and other terms and conditions of the
original issuance.
(iv) Patronage Payable and Capital Reserve.
All patronage payable (not continued above), capital
reserve and any other unallocated equity interests
standing on the books of Harvest States immediately
prior to the Effective Time shall continue to be equal
patronage payable, capital reserve or other equal
allocated or unallocated equity interests on the books
of Cenex Harvest States Cooperatives 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 (if applicable and as Cenex
Harvest States Cooperatives deems necessary) and other
terms and conditions of the original issuance (if
applicable).
(v) Net Effect. The net effect of the
continuation of Harvest States Equity Interests as equal
Equity Interests in Cenex Harvest States Cooperatives
shall be that the holders of Harvest States Equity
Interests standing on the books of Harvest States
immediately prior to the Effective Time shall hold and
will continue to have the same and equal Equity
Interests in Cenex Harvest States Cooperatives
immediately following the Effective Time, in terms of
stated dollar amount on a dollar-for-dollar basis, year
of issue (as determined necessary) and other rights and
preferences, and that the patronage payable, capital
reserve and other unallocated Equity Interests of
Harvest States, standing on its books immediately prior
to the Effective Time, shall continue to be the same
identical and equal Equity Interest in Cenex Harvest
States Cooperatives immediately following the Effective
Time, in terms of the stated dollar amount on a
dollar-for-dollar basis, and other rights and
preferences; provided, however, that, notwithstanding
the foregoing, the Equity Interests in Harvest States
that are held by CENEX immediately prior to the
Effective Time shall be treated in accordance with
generally accepted accounting principles.
(e) SURVIVING ENTITY ARTICLES AND BYLAWS TO GOVERN.
Membership in Cenex Harvest States Cooperatives and all Equity
Interests in Cenex Harvest States Cooperatives issued or credited in
exchange for CENEX Equity Interests and continued and credited with
respect to Harvest States Equity as described above, shall in all
instances be governed by the provisions of the Surviving Entity
Articles and the Surviving Entity Bylaws.
(f) FURTHER ASSURANCES OF HOLDERS OF EQUITY. Each holder
of CENEX Equity Interests and each holder of Harvest States Equity
Interests shall take such action or cause to be taken such action as
Cenex Harvest States Cooperatives 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 Cenex Harvest States Cooperatives, or
its successors or assigns, CENEX 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 Cenex Harvest States
Cooperatives, or its successors or assigns, may deem necessary or desirable in
order to vest in and confirm to Cenex Harvest States Cooperatives, 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 Cenex Harvest
States Cooperatives 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 CENEX or Harvest States vested in Cenex Harvest States Cooperatives
pursuant to this Plan, the officers of Cenex Harvest States Cooperatives, or its
successors or assigns, are hereby specifically authorized as attorneys-in-fact
of each CENEX and Harvest States (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
CENEX and Harvest States, or otherwise, as such officer shall deem necessary or
appropriate to accomplish such purpose.
SECTION 8. EFFECTIVE DATE. The Combination shall become effective at
12:01 a.m. central time on June 1, 1998 (the "Effective Time").
SECTION 9. GOVERNING LAW. This Plan shall be governed by and
construed in accordance with the laws of the State of Minnesota.
IN WITNESS WHEREOF, this Plan has been agreed to and executed by the
duly authorized representatives of CENEX and Harvest States, as of the date
first set forth above.
CENEX, INC. HARVEST STATES COOPERATIVES
By s/Elroy Webster By s/Gerald Kuster
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Its Chairman of the Board Its Chairman of the Board
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