AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement“) is entered into on [———-], 2017, by and between Washington State Council of Farmers Cooperatives (WA UBI 601128505), a Washington nonprofit public benefit corporation (“Surviving Corporation“), and OACC, Inc.(also known as ACCO) (OR Registry Number 042152-16), an Oregon nonprofit public benefit corporation (“Merging Corporation” and, together with Surviving Corporation, sometimes referred to herein as the “Parties” and each, a “Party“).

WHEREAS, (i) Merging Corporation is organized and operating under Chapter 65 et seq. of the Oregon Revised Statutes, (ii) Merging Corporation has no members, and (iii) the specific purposes of Merging Corporation are to provide education to the public and agricultural marketing and supply cooperatives in each state and to carry on other charitable or educational activities associated with these goals as allowed by law;

WHEREAS, (i) Surviving Corporation is organized and operating under the Washington Nonprofit Corporation Act (Chapter 24.03, et seq.) of the Revised Code of Washington, (ii) Surviving Corporation has no members, and (iii) the specific purposes of Surviving Corporation are to support and organize the educational and outreach for agricultural cooperatives in the northwest region and other charitable or educational activities associated with these goals as allowed by law;

WHEREAS, the Board of Directors of Surviving Corporation and the Board of Directors of Merging Corporation (i) have determined that it is in the best interest of their respective organizations that Merging Corporation be merged with and into Surviving Corporation, with Surviving Corporation as the surviving nonprofit public benefit corporation (the “Merger“), in accordance with the applicable laws of the State of Washington and the State of Oregon and upon the terms and subject to the conditions hereinafter set forth, and (ii) have approved the Merger and the form and terms of the Articles of Merger (as defined below) and this Agreement by all necessary corporate action.

NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants, agreements and provisions herein contained, the Parties agree as follows:

1.The Merger

.  In accordance with the provisions of this Agreement and the applicable laws of the State of Washington and the State of Oregon, at the Effective Time (as defined in Section 2 below), Merging Corporation shall be merged with and into Surviving Corporation, which shall be the surviving corporation. From and after the Effective Date, Surviving Corporation shall continue its existence as a Washington nonprofit public benefit corporation and the separate existence of Merging Corporation shall cease.

2.Delivery and Filing of Articles of Merger; Effective Time of Merger

.  Promptly following the execution of this Agreement, (i) Surviving Corporation shall, pursuant to Section 24.03.205 of the Revised Code of Washington, file Articles of Merger in substantially the form attached hereto as Annex A, together with a copy of this Agreement attached thereto (collectively, the “Articles of Merger“), with the Secretary of State of the State of Washington and (ii) Merging Corporation shall, pursuant to Section 65.491 of the Oregon Revised Statutes, file the Articles of merger with the Secretary of State of the State of Oregon.  In accordance with this Agreement, Sections 24.03.205 and 23.95.210 of the Revised Code of Washington and Section 65.491 of the Oregon Revised Statutes, the Merger shall be effective at 12:01 a.m. prevailing Pacific time January 1, 2018, after the Articles of Merger are so filed (the “Effective Time“).

3.Effect of the Merger

From and after the Effective Date, in accordance with Section 24.03.210 of the Revised Code of Washington and Section 65.494 of the Oregon Revised Statutes, (i) Surviving Corporation shall continue its existence as a Washington nonprofit public benefit corporation and the separate existence of Merging Corporation shall cease, (ii) Surviving Corporation shall have all the rights, privileges, immunities and powers and shall be subject to all the duties and liabilities of a corporation organized under the Washington Nonprofit Corporation Act (Chapter 24.03, et seq.) of the Revised Code of Washington; (iii) Surviving Corporation shall thereupon and thereafter possess all the rights, privileges, immunities, and franchises, as well of a public as of a private nature, of each of Merging Corporation and Surviving Corporation, and all property, real, personal and mixed, and all debts due on whatever account, and all other choses in action, and all and every other interest, of or belonging to or due to each of Merging Corporation and Surviving Corporation shall be taken and deemed to be transferred to and vested in Surviving Corporation without further act or deed, and the title to any real estate, or any interest therein, vested in any of Merging Corporation or Surviving Corporation shall not revert or be in any way impaired by reason of such merger or consolidation; (iii) Surviving Corporation shall thenceforth be responsible and liable for all the liabilities and obligations of each of Merging Corporation and Surviving Corporation, and any claim existing or action or proceeding pending by or against any of Merging Corporation or Surviving Corporation may be prosecuted and continued as if such merger or consolidation had not taken place, or Surviving Corporation may be substituted in its place, and neither the rights of creditors nor any liens upon the property of Merging Corporation or Surviving Corporation shall be impaired by such merger or consolidation.

(a)                Amendments to Articles of Incorporation or Bylaws.  Surviving Corporation’s articles of incorporation and bylaws (“Governing Documents“) in effect immediately prior to the Effective Date shall be amended and restated as attached and remain its Governing Documents following the Effective Date until amended or repealed as provided by law.

(b)               No Changes to Directors and Officers.  Surviving Corporation’s directors and officers are as listed in the “NACC” Bylaws changed in accordance with law and Surviving Corporation’s Governing Documents.

(c)                Membership.  Membership in the Surviving Corporation is as provided in the Articles and Bylaws.

(d)               Board Election. With the member vote of each Party’s members a slate of Directors representing the combined geographic and business areas of both Parties shall be voted upon by the combined membership prior to the Effective Date but to take effect on the first day of the Surviving Corporation merged operation.

4.Representations and Warranties of Each Party.  Each of Merging Corporation and Surviving Corporation hereby represents and warrants to the other as follows:

(a)                Corporate Organization.

(i)                 Such Party is a nonprofit public benefit corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization.  Such Party has the requisite corporate power and authority to own, lease, and to the extent applicable, operate all of its properties and assets and to carry on its business as it is now being conducted and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary.  Such Party has no members and does not own any interest in any other person or entity.

(ii)               True, complete and correct copies of the articles of incorporation and bylaws of such Party, in each case as amended and in effect as of the date of this Agreement, have previously been delivered to the other Party.

(b)               Authority; No Violation.

(i)                 Such Party has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of such Party. The Board of Directors of such Party has determined that this Agreement is advisable and in the best interests of such Party.  Except for notices and filings required by applicable law, no other corporate proceedings on the part of such Party are necessary to approve this Agreement or to consummate the Merger.  This Agreement has been duly and validly executed and delivered by such Party and (assuming due authorization, execution and delivery by the other Party) constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or similar laws of general applicability relating to or affecting the rights of creditors generally and subject to general principles of equity).

(ii)               None of the execution and delivery of this Agreement by such Party, the consummation by such Party of the transactions contemplated hereby, or compliance by such Party with any of the terms or provisions of this Agreement, (i) will violate any provision of such Party’s articles of incorporation or bylaws, in each case as amended and in effect as of the date of this Agreement, or (ii) will (A) violate any law, judgment, order, injunction or decree applicable to such Party or any of its properties or assets or (B) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any lien upon any of the properties or assets of such Party under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, contract, agreement or other instrument or obligation to which such Party is a party or by which it or any of its properties or assets is bound.

(c)                Consents and Approvals.  Except for notices and filings required by applicable law (including the filing of the Articles of Merger), no consents or approvals of or notices to or filings with any foreign, federal or state regulatory, self-regulatory or enforcement authorities or any courts, administrative agencies or commissions or other governmental authorities or instrumentalities are necessary in connection with the execution and delivery of this Agreement and the consummation of the Merger.  No other third-party consents are required in connection with (A) the execution and delivery by such Party of this Agreement or (B) the consummation of the transactions contemplated hereby.

(d)               Non-profit Status.  Each party is a non-profit association but not qualified as a charitable organization for tax deductible contributions.

5.Additional Representations and Warranties.  Merging Corporation and Surviving Corporation hereby additionally represent and warrant to the other as follows:

(a)                Financial Statements.

(i)                 Prior to the date of this Agreement, Merging Corporation has delivered to Surviving Corporation true and complete copies of such Party’s current statement of financial position and related statements of activities, functional expenses and cash flows for the year ended 2015 and (B) estimate of financial position and related statements of activities, functional expenses and cash flows for the year ended 2017 (the statements referred to in the foregoing clauses (A) and (B), the “Financial Statements“).  To the knowledge of each Party, each of the Financial Statements fairly presents, in all material respects, the financial position and results of operations of the Party, as at and for the periods covered thereby.

(ii)               Except as and to the extent set forth or reflected in Financial Statements, to the knowledge of Merging Corporation, Merging Corporation has no material obligation or liability of any nature, and to the knowledge of Merging Corporation, there has been no threat by any person or entity regarding the assertion against Merging Corporation of any such obligation or liability.

(b)               Legal Proceedings.  Neither Party is a party to any, and there are no pending or threatened legal, administrative, arbitral or other proceedings, claims, actions, suits or governmental or regulatory investigations of any nature against either Party.  To the knowledge of Merging Corporation, there is no judgment, settlement agreement, order, injunction, decree or regulatory restriction imposed upon Merging Corporation (or that, upon consummation of the Merger, would apply to Surviving Corporation).

(c)                Affiliate Transactions.  To the knowledge of each Party, no director, officer or employee of either Party has any right, title or interest in or to any of a Party’s assets.

6.Additional Covenants and Agreements.

 

(a)                Surviving Corporation hereby covenants and agrees as follows:

(i)                 Tax Returns; Notices.  Surviving Corporation shall use its commercially reasonable efforts to (1) cause to be timely filed all final federal corporate tax returns, state corporate tax returns and reports and other returns and reports for Merging Corporation required to be filed, and (2) prepare and deliver all notices required by law to be delivered.

(ii)               Financial Resources.  Surviving Corporation shall utilize the net assets of Merging Corporation, as of immediately prior to the Effective Date, in furtherance of the charitable purposes of the combined company.

(b)               Surviving Corporation and Merging Corporation each hereby covenant and agree as follows:

(i)                 Confidentiality.  Surviving Corporation and Merging Corporation shall keep this Agreement and the other documents contemplated hereby (including the Side Letter), including the fact that they exist and the terms thereof, confidential and not disclose them or their terms to any third party other than with the prior written consent of the other Party or in accordance with a communications plan previously approved by each of the Parties; provided, that the foregoing shall not prohibit such disclosure to such Party’s directors, officers and other employees who have a need to know such information or to such Party’s legal and other professional advisors (provided that such persons will be informed of the confidential nature thereof).

(ii)               Publicity.  Without limiting the generality of Section 6(c)(i) above, Surviving Corporation and Merging Corporation shall consult with each other before issuing any press release or otherwise making any public statement with respect to this Agreement or the other documents contemplated hereby (including the Side Letter) or the transactions contemplated hereby and thereby and shall not issue any such press release or make any such public statement prior to such consultation or as to which the other party promptly and reasonably objects, except (A) as may be required by law based on the advice of such party’s counsel, in which case the party proposing to issue such press release or make such public announcement shall use its commercially reasonable efforts to consult in good faith with the other party before issuing any such press release or making any such public announcement or (B) in accordance with a communications plan previously approved by each of the Parties.

7.Amendment

This Agreement may be amended by the Parties, to the fullest extent permitted by law, only by an amendment duly executed by both Parties at any time prior to the Effective Time, subject to the receipt of any additional approval required by law.

8.Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of them together shall constitute one agreement.

9.Governing Law

This Agreement shall be governed in all applicable respects by the laws of the State of Washington and of the State of Oregon.  The Parties consent to the jurisdiction of courts of the State of Washington over all matters relating to this Agreement.  The venue of any dispute between the Parties shall be Clark County, Washington.

10.Entire Agreement

This Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements, arrangements and communications, whether oral or written.

11.Further Assurances

On request by either Party (including, in the case of Merging Corporation following the Effective Date, the Representative), the other Party shall, from time to time and at the requesting Party’s expense, execute and deliver such documents and instruments and take such actions that may be necessary to vest in Surviving Corporation the title to, and possession of, all rights, properties, assets, trusts and businesses of Merging Corporation or otherwise to carry out the intent and purpose of this Agreement.

12.Survival of Representations, Warranties and Covenants. All representations, warranties, covenants and agreements of Merging Corporation contained herein shall terminate on the Effective Date and be of no further force or effect (notwithstanding any statute of limitations).  All representations and warranties of Surviving Corporation contained herein and all covenants and agreements of Surviving Corporation contained herein to be performed prior to the Effective Date shall terminate on the Effective Date and be of no further force or effect (notwithstanding any statute of limitations), and all other covenants and agreements of Surviving Corporation contained herein shall survive until performed in accordance with their terms (notwithstanding any statute of limitations).  None of Merging Corporation’s or Surviving Corporation’s past or present officers, directors, advisors, employees, agents, representatives or affiliates shall have any liability under this Agreement.

[Signature Pages Follow]

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.

 

MERGING CORPORATION:

OACC, INC.

 

____________________________________

By:

Its:

____________________________________

By:

Its:


SURVIVING CORPORATION:

WASHINGTON STATE COUNCIL OF

FARMERS COOPERATIVES

 

 

____________________________________

By:

Its:

____________________________________

By:

Its:

with a copy (which shall not constitute notice) to:

 

Dustin R. Klinger

Thede Culpepper Moore Munro & Silliman LLP

111 S.W. Fifth Avenue, Suite 3675

Portland, Oregon  97204

 

 

 

Articles of Merger

See attached.


ARTICLES OF MERGER

OF

OACC, INC.

WITH AND INTO

WASHINGTON STATE COUNCIL OF

FARMERS COOPERATIVE

 

________________, 2017

 

Pursuant to Section 24.03.200 of the Revised Code of Washington and Section 65.491 of the Oregon Revised Statutes, the following Articles of Merger are executed as of the date first set forth above:

 

  1. The names of the constituent corporations to the merger are OACC, Inc. (OR Registry Number 042152-16), an Oregon nonprofit public benefit corporation (“Merging Corporation“), and Washington State Council of Farmers Cooperatives (WA UBI 601128505), a Washington nonprofit public benefit corporation (“Surviving Corporation“) to be renamed Northwest Agricultural Cooperative Council.

 

  1. The surviving corporation is Washington Council of Farmers Cooperatives with a new name: Northwest Agricultural Cooperative Council .

 

  1. The Merging Corporation has current Members that are or will become Members of the Surviving Corporation.

 

  1. The Surviving Corporation adds members of the Merging Corporation.

 

  1. The Agreement and Plan of Merger attached hereto as Exhibit A (the “Merger Agreement“) was duly adopted and approved by the Board of Directors of Merging Corporation on __________, 2017 by the vote of a majority of the directors of Merging Corporation then in office, constituting the requisite vote of such directors.

 

  1. The Merger Agreement was duly adopted and approved by the Board of Directors of Surviving Corporation on __________, 2017 by the vote of a majority of the directors of Surviving Corporation then in office, constituting the requisite vote of such directors.

 

  1. The effective time of the merger shall be 12:01 a.m. Pacific Time on January 1, 2018, after these Articles of Merger are filed with the Secretary of State of the State of Washington.

 

[Signature Pages Follow]


The undersigned affirm that the foregoing is true and accurate and that they have the authority to sign these Articles of Merger on behalf of Merging Corporation and Surviving Corporation, respectively.

 

 

MERGING CORPORATION:

OACC, INC.

 

____________________________________

By:

Its:

____________________________________

By:

Its:

 

SURVIVING CORPORATION:

NORTHWEST AGRICULTURAL

COOPERATIVE COUNCIL (fka

Washington State Council of Farmers

Cooperatives)

 

 

____________________________________

By:

Its:

____________________________________

By:

Its: