AGREEMENT AND PLAN OF MERGER BY AND BETWEEN GREEN PLAINS RENEWABLE ENERGY, INC., GREEN PLAINS GRAIN MERGER SUB, INC. and GREAT LAKES COOPERATIVE Dated as of August 15, 2007Agreement and Plan of Merger |
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Search Agreement and Plan of Merger by:
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
GREEN PLAINS RENEWABLE ENERGY, INC.,
GREEN PLAINS GRAIN MERGER SUB, INC.
and
GREAT LAKES COOPERATIVE
Dated as of August 15, 2007
TABLE OF CONTENTS
Page
Articles of Incorporation and Bylaws.
Board of Directors and Officers.
No Further Ownership Rights in Shares.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Obligations With Respect to Shares.
Authority; Non-Contravention; Necessary Consents.
Absence of Certain Changes or Events; No Undisclosed Liabilities.
Assets; Real and Personal Property.
Compliance with Laws; Permits.
Employee Benefit Plans; Employee Matters.
Agreements, Contracts and Commitments.
Information in Registration Statement and Prospectus/Proxy Statement.
Approval of Board of Directors.
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Organization of Parent and Merger Sub.
Authority; Non-Contravention; Necessary Consents.
Information in Registration Statement and Prospectus/Proxy Statement.
SEC Filings; Parent Financial Statements.
Facts Affecting Regulatory Approvals.
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME
Conduct of Business by the Company.
ARTICLE V ADDITIONAL AGREEMENTS
Prospectus/Proxy Statement; Registration Statement.
Company Members’ Meeting; Board of Directors Recommendation.
Confidentiality; Access to Information.
ii
Company Affiliates; Restrictive Legend.
Regulatory Filings; Reasonable Efforts.
Notification of Certain Matters.
Subsequent Financial Statements.
Company’s Indemnification Obligations
Limitation on Company’s Indemnification Obligations
Parent’s Indemnification Covenants
ARTICLE VI CONDITIONS TO THE MERGER
Conditions to the Obligations of Each Party to Effect the Merger.
Additional Conditions to the Obligations of the Company.
Additional Conditions to the Obligations of Parent.
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
Notice of Termination; Effect of Termination.
Fees and Expenses; Termination Fee.
ARTICLE VIII GENERAL PROVISIONS
Non-Survival of Representations and Warranties.
Interpretation; Certain Defined Terms.
Entire Agreement; Third Party Beneficiaries.
Other Remedies; Specific Performance.
No Waiver; Remedies Cumulative.
iii
INDEX TO DEFIND TERMS
Acquisition | 35 |
| Legal Requirement | 7 |
Acquisition Proposal | 22 |
| Letter of Transmittal | 4 |
Affiliates | 37 |
| Lien | 8 |
Agreement | 1 |
| manager | 38 |
Articles of Merger | 2 |
| Material Adverse Effect | 38 |
Assignee | 39 |
| Merger | 2 |
Benefit Plan | 13 |
| Merger Sub | 1 |
Cash Consideration | 3 |
| Nasdaq | 1 |
CERCLA | 15 |
| Necessary Consents | 8 |
CERCLIA | 15 |
| Non-Voting Members | 19 |
Common Stock A Shares | 3 |
| Notice Deadline | 27 |
Common Stock B Shares | 3 |
| NPL | 15 |
Closing | 2 |
| Parent | 1 |
Closing Date | 2 |
| Parent Common Stock | 3 |
Code | 5 |
| Parent Disclosure Letter | 17 |
Committee | 29 |
| Parent SEC Reports | 18 |
Company | 1 |
| Per Share Consideration | 3 |
Company Disclosure Letter | 6 |
| person | 38 |
Company Members’ Meeting | 23 |
| Preferred Shares | 3 |
Company Permits | 13 |
| Prospectus/Proxy Statement | 15 |
Company Termination Fee | 35 |
| Real Property | 10 |
Contracts | 15 |
| Regional Equity | 27 |
Deductible | 28 |
| Registration Statement | 15 |
Designated Employees | 27 |
| Representatives | 24 |
Effective Time | 2 |
| Shareholders | 28 |
End Date | 33 |
| subsidiary | 38 |
Environmental Claim | 13 |
| Superior Proposal | 22 |
Environmental Laws | 13 |
| Surviving Company | 2 |
ERISA | 13 |
| Tax | 9 |
ERISA Affiliate | 13 |
| Tax Return | 9 |
Escrow Agent | 27 |
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Escrow Agreement | 27 |
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Escrow Funds | 27 |
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Exchange Act | 8 |
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Exchange Agent | 3 |
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Exchange Fund | 4 |
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Financial Statements | 8 |
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GAAP | 10 |
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Governmental Entity | 8 |
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group | 22 |
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Hazardous Substances | 14 |
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ICA | 2 |
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Indemnification Cap | 28 |
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Intellectual Property | 11 |
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knowledge | 37 |
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iv
INDEX OF EXHIBITS
Exhibit A
Per Share Consideration
Exhibit B
Opinion Requirements
Exhibit C
Escrow Agreement
v
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), is entered into as of August 15, 2007 by and among Green Plains Renewable Energy, Inc., an Iowa corporation (“Parent”), Green Plains Grain Merger Sub, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent (“Merger Sub”), and Great Lakes Cooperative, an Iowa cooperative association (the “Company”).
RECITALS
A.
The Board of Directors of Parent, the Board of Directors of Company and the Board of Directors of Merger Sub have approved, and deem it advisable and in the best interests of their respective stockholders and members to consummate a business combination between the Company and Parent upon the terms and subject to the conditions set forth herein.
B.
The Board of Directors of Parent, the Board of Directors of Company and the Board of Directors of Merger Sub have approved this Agreement and the transactions contemplated hereby, including the Merger (as defined in Section 1.1).
E.
The Company’s Board of Directors has resolved to recommend to its members the approval and adoption of this Agreement and approval of the Merger and the transactions contemplated hereby.
F.
Parent, as the sole member of Merger Sub, has approved and adopted this Agreement and approved the Merger.
G.
Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants, agreements, representations and warranties set forth herein, the parties agree as follows:
1
ARTICLE I
THE MERGER
1.1
The Merger At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the Iowa Cooperative Associations Act (the “ICA”), 2007 Iowa Code Chapter 499, 2007 Iowa Code Section 501A.1101 and Delaware General Corporation Law Title 8, Merger Sub shall be merged with and into the Company (the “Merger”), the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving entity. The Company, as the surviving entity after the Merger, is hereinafter sometimes referred to as the “Surviving Company.” The address of the Surviving Company’s principal place of business is set forth in Section 8.2(b).
1.2
Effective Time; Closing Subject to the provisions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing Articles of Merger with the Secretary of State of the State of Iowa in accordance with the relevant provisions of the ICA, 2007 Iowa Code Chapter 499, and 2007 Iowa Code Section 501A.1101 and the Secretary of State of the State of Delaware in accordance with the relevant provisions of Delaware General Corporation Law, as the case may be, (the “Articles of Merger”) (the time of such filing with the Secretary of State of the State of Iowa and the State of Delaware (or such later time as may be agreed in writing by the Company and Parent and specified in the Articles of Merger) being the “Effective Time”) as soon as practicable on or after the Closing Date, but in no event later than the next business day following the Closing Date. The closing of the Merger (the “Closing”) shall take place at the offices of Blackwell Sanders LLP, 1620 Dodge St., Suite 2100, Omaha NE 68102, at a time and date to be specified by the parties, which shall be no later than the second business day after the satisfaction or waiver of the conditions set forth in Article VI (other than those conditions which by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), or at such other time, date and location as the parties hereto agree in writing (the “Closing Date”).
1.3
Effect of the Merger At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the ICA and Delaware General Corporation Law.
1.4
Articles of Incorporation and Bylaws. At the Effective Time, the Articles of Incorporation of the Company shall be amended and restated in their entirety to be identical to the Articles of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with the ICA and as provided in such Articles of Incorporation; provided, however, that at the Effective Time, Article 1 of the Articles of Incorporation of the Surviving Company shall be amended and restated in its entirety to read as follows: “The name of the surviving company is Green Plains Grain Cooperative.” At the Effective Time, the bylaws of the Company shall be amended and restated in its entirety to be identical to the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with the ICA and as provided in such bylaws.
1.5
Board of Directors and Officers. The initial board of directors of the Surviving Company shall be the board of directors of Merger Sub immediately prior to the Effective Time, until their respective successors are duly elected or appointed and qualified. The initial officers of the Surviving Company shall be the officers of Merger Sub immediately prior to the Effective Time, until their respective successors are duly appointed.
1.6
Effect on Capital Shares Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of shares of the Company, the following shall occur:
2
(a)
Company Shares.
(i)
Each of the Company’s Common Stock A shares (“Common Stock A Shares”), Common Stock B shares (“Common Stock B Shares”) and Preferred Stock shares (“Preferred Shares” and, together with the Common Stock A Shares and Common Stock B Shares, “Shares”) issued and outstanding immediately prior to the Effective Time, other than any Shares to be canceled pursuant to Section 1.6(b), will, at the Effective Time, be canceled and extinguished and automatically converted (subject to Section 1.6(d)) into the right to receive the “Per Share Consideration”).
(ii)
The applicable Per Share Consideration to be paid in exchange for each Share as provided in Section 1.6(a)(i) shall include shares of common stock of Parent, par value [$0.01] per share (“Parent Common Stock”) and/or cash (“Cash Consideration”) as provided on Exhibit A hereto.
(b)
Cancellation of Treasury Shares. Each Share held by the Company or any direct or indirect wholly-owned subsidiary of the Company immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof.
(c)
Capital Stock of Merger Sub. Each unit of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of the Surviving Company
(d)
Fractional Shares. No fraction of a share of Parent Common Stock will be issued by virtue of the Merger, but in lieu thereof each holder of Shares who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) shall, upon surrender of such holder’s Shares in accordance with Section 1.7(c), receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, less the amount of any withholding taxes as contemplated by Section 1.7(f), which are required to be withheld with respect thereto, equal to the product of: (i) such fraction multiplied by (ii) the Per Share Consideration. Fractional share valuation shall be based upon the cash consideration price of $16.636 per share.
(e)
Adjustments to Per Share Consideration. The applicable Per Share Consideration shall be adjusted to reflect fully the appropriate effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock), reorganization, recapitalization, reclassification or other like change with respect to Parent Common Stock having a record date on or after the date hereof and prior to the Effective Time.
(f)
Cash out Option. Notwithstanding the foregoing, the parties hereto shall use their best efforts, prior to Closing, to arrive upon a methodology and process to provide for a cashing out of Shareholders entitled to receive Shares of a de minimis amount, as mutually agreed and defined by the parties hereto.
1.7
Exchange Procedures.
(a)
Exchange Agent. Parent shall designate such party as Parent and the Company shall mutually agree upon to act as the exchange agent (the “Exchange Agent”) in the Merger.
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(b)
Parent to Provide Cash and/or Common Stock. Prior to the Effective Time (and in any event not less than one (1) day prior to the Closing), Parent shall enter into an agreement with the Exchange Agent, reasonably satisfactory to the Company, which shall provide that Parent shall make available to the Exchange Agent for exchange in accordance with this Article I, the shares of Parent Common Stock issuable and cash payable in exchange for outstanding Shares pursuant to Section 1.6(a). In addition, Parent shall make available as necessary from time to time after the Effective Time as needed, cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 1.6(d) and any dividends or distributions which holders of Shares may be entitled pursuant to Section 1.7(d). Any cash and/or Parent Common Stock deposited with the Exchange Agent shall hereinafter be referred to as the “Exchange Fund.”
(c)
Exchange Procedures. Promptly after the Effective Time but in any event within two (2) business days, Parent shall cause the Exchange Agent to mail to each holder of record (as of the Effective Time) of a Share or Shares that were converted into the right to receive the applicable Per Share Consideration pursuant to Section 1.6(a), cash in lieu of any fractional shares pursuant to Section 1.6(d) and any dividends or other distributions pursuant to Section 1.7(d): (i) a letter of transmittal (which shall specify that surrender of Shares shall be effected only upon delivery of the letter of transmittal to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify) (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Shares in exchange for (1) the applicable Per Share Consideration, (2) cash in lieu of any fractional shares pursuant to Section 1.6(d) and (3) any dividends or other distributions pursuant to Section 1.7(d). Upon delivery of such Letter of Transmittal to the Exchange Agent or to such other agent or agents as may be appointed by Parent, duly completed and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Exchange Agent, the holder of such Shares surrendered by such Letter of Transmittal shall be entitled to receive in exchange for each such Share the applicable Per Share Consideration (after taking into account all Shares surrendered by such holder) to which such holder is entitled pursuant to Section 1.6(a), payment in lieu of fractional shares which such holder has the right to receive pursuant to Section 1.6(d) and any dividends or distributions payable pursuant to Section 1.7(d), and the Shares so surrendered shall forthwith be canceled. Any shares of Parent Common Stock issued in exchange for Shares shall be in uncertificated book entry form unless a physical certificate is requested or is otherwise required by applicable law or regulation. Until so surrendered, each Share will be deemed from and after the Effective Time, for all corporate purposes, to evidence the ownership of the applicable Per Share Consideration (which shall include Cash Consideration and/or the number of full shares of Parent Common Stock into which such Shares shall have been so converted) and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 1.6(d) and any dividends or distributions payable pursuant to Section 1.7(d).
(d)
Distributions With Respect to Unexchanged Shares. No dividends or other distributions declared with a record date after the Effective Time with respect to shares of Parent Common Stock with a record date after the Effective Time will be paid to the holder of any Share with respect to the shares of Parent Common Stock represented thereby until the holder of record of such Share shall surrender such Share pursuant to Section 1.7(c). Subject to applicable law, following surrender of any such Share, there shall be paid to the record holder of the Shares evidencing full shares of Parent Common Stock that may be issued in exchange therefore pursuant to Section 1.6(a), without interest, at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such full shares of Parent Common Stock.
4
(e)
Transfers of Ownership. If shares of Parent Common Stock are to be issued in the name of, and/or Cash Consideration paid to, a person other than the person in whose name the Shares surrendered in exchange therefor are registered, it will be a condition of the issuance thereof that (i) the appropriate transfer forms be presented for transferring Shares, (ii) such transfer complies with applicable Legal Requirements, the and the procedures established by the Company for transferring Shares as in effect on the date hereof and (iii) the persons requesting such exchange will have paid to Parent or any agent designated by it any transfer or other Taxes required by reason of the issuance of shares of Parent Common Stock in the name of, or payment of Cash Consideration to, any person other than the registered holder of the Shares surrendered, or established to the satisfaction of Parent or any agent designated by it that such Tax has been paid or is not payable.
(f)
Required Withholding. Each of the Exchange Agent and the Surviving Company shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Shares such amounts as are required to be deducted or withheld therefrom under the Internal Revenue Code of 1986, as amended (the “Code”) or under any provision of state, local or foreign Tax law or under any other applicable Legal Requirement. To the extent such amounts are so deducted or withheld, the amount of such consideration shall be treated for all purposes under this Agreement as having been paid to the person to whom such consideration would otherwise have been paid.
(g)
No Liability. Notwithstanding anything to the contrary in this Section 1.7, none of the Exchange Agent, the Surviving Company or any party hereto shall be liable to a holder of Shares for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(h)
Investment of Exchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent on a daily basis; provided that no such investment or loss thereon shall affect the amounts payable to Company shareholders pursuant to this Article I. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable to Company shareholders pursuant to this Article I shall promptly be paid to Parent.
(i)
Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of Shares twelve (12) months after the Effective Time shall, at the request of the Surviving Company, be delivered to the Parent, and any holders of the Shares who have not surrendered such Shares in compliance with this Section 1.7 shall after such delivery to the Parent look only to the Parent for the applicable Per Share Consideration pursuant to Section 1.6(a), cash in lieu of any fractional shares pursuant to Section 1.6(d) and any dividends or other distributions pursuant to Section 1.7(d) with respect to the Shares. Any such portion of the Exchange Fund remaining unclaimed by holders of Shares immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by law, become the property of Parent free and clear of any claim or interest of any person previously entitled thereto.
1.8
No Further Ownership Rights in Shares All shares of Parent Common Stock issued and/or Cash Consideration paid upon the surrender for exchange of Shares in accordance with the terms hereof (including any cash paid in respect thereof pursuant to Section 1.6(d)) shall be deemed to have been issued and/or paid in full satisfa