Exhibit 2.1 AGREEMENT AND PLAN OF MERGER among Bellisio Foods, Inc. Bellisio Acquisition Corp. and Overhill Farms, Inc. Dated as of May 14, 2013 TABLE OF CONTENTS Page ARTICLE1 DEFINITIONS 2 Certain Definitions 2 Terms Defined Elsewhere 10 Interpretation 12 ARTICLE2 THE MERGER 12 The Merger 12 Closing and Effective Time of the Merger 13 ARTICLE3 CONVERSION OF SECURITIES IN THE MERGER 14 Conversion of Securities 14 Payment for Securities; Surrender of Certificates 15 Treatment of Company Options; Stock Plans 17 ARTICLE4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 18 Organization and Qualification; No Subsidiaries 18 Capitalization 18 Authority 20 No Conflict 21 Required Filings and Consents 21 Permits; Compliance with Law 22 SEC Filings; Financial Statements 23 Internal Controls 24 Anti-Takeover Provisions 24 No Undisclosed Liabilities 25 Absence of Certain Changes or Events 25 Employee Benefit Plans 25 Labor and Other Employment Matters 27 Contracts 29 Litigation 31 Environmental Matters 31 Intellectual Property 32 Tax Matters 35 Insurance 36 Properties and Assets 36 Real Property 37 Opinion of Financial Advisor 37 Required Vote 38 Brokers 38 Related Party Transactions 38 Specific Compliance with FDA, USDA and Other Food Regulations. 38 i TABLE OF CONTENTS (Continued) Page Company Proxy Statement 39 Independent Investigation 39 ARTICLE5 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 39 Organization and Qualification 40 Authority 40 No Conflict 40 Required Filings and Consents 41 Litigation 41 Ownership of Company Common Stock 41 Financial Ability 42 Ownership of Merger Sub; No Prior Activities 42 Management Arrangements 42 Brokers 42 Company Proxy Statement 42 Independent Investigation 43 ARTICLE6 COVENANTS 43 Conduct of Business by the Company Pending the Closing 43 Access to Information; Confidentiality 46 Acquisition Proposals 47 Company Proxy Statement; Company Stockholder Meeting 50 Appropriate Action; Consents; Filings 52 Public Announcements 53 Employee Benefit Matters 54 Indemnification of Directors and Officers 55 Anti-takeover Laws 57 Parent Agreement Concerning Merger Sub 57 Section 16 Matters 57 Stock Exchange Delisting; Deregistration 57 Stockholder Litigation 57 FIRPTA Certificate 57 Financing 58 Automatic Extension of Contract 58 Repayment of Revolving Credit Facility 58 ARTICLE7 CONDITIONS TO CONSUMMATION OF THE MERGER 59 Conditions to Obligations of Each Party Under This Agreement 59 Conditions to Obligations of Parent and Merger Sub 59 Conditions to Obligations of the Company 60 ARTICLE8 TERMINATION, AMENDMENT AND WAIVER 61 Termination 61 ii TABLE OF CONTENTS (Continued) Page Effect of Termination 62 Limitations 64 Amendment 65 Waiver 66 ARTICLE9 GENERAL PROVISIONS 66 Non-Survival of Representations and Warranties 66 Fees and Expenses 66 Notices 66 Headings 67 Severability 67 Entire Agreement 67 No Third Party Beneficiaries 68 Assignment 68 Mutual Drafting 68 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury 68 Counterparts 69 Specific Performance 69 Exhibit A Form of Third Amended and Restated Articles of Incorporation of the Surviving Corporation Exhibit B Form of Third Amended and Restated Bylaws of the Surviving Corporation iii \ AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER, dated as of May 14, 2013 (this “Agreement”), is entered into by and among Bellisio Foods, Inc., a Minnesota corporation (“Parent”), Bellisio Acquisition Corp., a Nevada corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”), and Overhill Farms, Inc., a Nevada corporation (the “Company”). All capitalized terms used in this Agreement will have the meanings assigned to such terms in Section 1.1 or as otherwise defined elsewhere in this Agreement. RECITALS WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Merger Sub will be merged with and into the Company, with the Company continuing as the Surviving Corporation (the “Merger”), in accordance with the Nevada Revised Statutes (the “NRS”), whereby each issued and outstanding share of common stock, par value $0.01 per share, of the Company (the “Company Common Stock”) (which shares of Company Common Stock are hereinafter referred to as the “Shares”) (other than Shares to be cancelled in accordance with Section 3.1(b)) will be converted into the right to receive $5.00 (the “Merger Consideration”), payable net to the holder in cash, without interest; WHEREAS, the Board of Directors of the Company (the “Company Board”) has, upon the terms and subject to the conditions set forth herein, (i) determined that the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) adopted, approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby in accordance with the requirements of the NRS and (iii) recommended that the Company’s stockholders vote their Shares in favor of adopting and approving this Agreement and the transactions contemplated hereby, including the Merger (the “Company Board Recommendation”); WHEREAS, the Boards of Directors of Parent and Merger Sub have, upon the terms and subject to the conditions set forth herein, (i) determined that the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of Parent and Merger Sub and their respective stockholders and (ii) adopted, approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby; WHEREAS, as an inducement to Parent’s and Merger Sub’s willingness to enter into this Agreement, certain stockholders of the Company have entered into voting agreements with Parent and Merger Sub (the “Voting Agreements”); and WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and premises contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, agree as follows: ARTICLE 1 DEFINITIONS 1.1Certain Definitions. For purposes of this Agreement, the term: “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that (i) does not contain any provision prohibiting or otherwise restricting the Company from making any of the disclosures required to be made to the Parent or Merger Sub by Section 6.3 or any other provision of this Agreement and (ii) contains provisions that are no less favorable in any meaningful respect to the Company than those contained in the Confidentiality Agreement. “Acquisition Proposal” means any offer or proposal concerning any (a) merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction involving the Company, (b) sale, lease or other disposition of assets of the Company representing 20% or more of the assets of the Company, (c) issuance or sale by the Company of Equity Interests representing 20% or more of the voting power (or 20% or more of the aggregate number of all outstanding Shares) of the Company, (d) transaction in which any Person will acquire beneficial ownership or the right to acquire beneficial ownership or any group has been formed which beneficially owns or has the right to acquire beneficial ownership of, Equity Interests representing 20% or more of the voting power (or 20% or more of the aggregate number of all outstanding Shares) of the Company or (e) any combination of the foregoing (in each case, other than the Merger). “Affiliate” means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first-mentioned Person. “Anti-takeover Law” means any and all “fair price,” “moratorium,” “control share acquisition,” “business combination” and other similar laws of the State of Nevada or any other state or jurisdiction, including the “Acquisition of Controlling Interest” statutes set forth in NRS 78.378 – 78.3793, inclusive, and the “Combinations with Interested Stockholders” statutes set forth in NRS 78.411 – 78.444, inclusive. “beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”) has the meaning set forth in Rule 13d-3 under the Exchange Act. “Business” means the business conducted by the Company in the design, development, research, use, manufacture or sale of the Company Products. 2 “Business Day” means any day other than Saturday, Sunday and any day on which commercial banks in New York, New York are required or permitted by Law to close. “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.). “Code” means the Internal Revenue Code of 1986, as amended. “Co-Manufacturing Agreement” means the Co-Manufacturing, Sales, and Distribution Agreement, dated July 1, 2011, between Company and Parent, as amended by the First Amendment to Co-Manufacturing, Sales, and Distribution Agreement, dated December 28, 2012, as further amended by the Second Amendment to Co-Manufacturing, Sales, and Distribution Agreement, dated February 27, 2013, as further amended by the Third Amendment to Co-Manufacturing, Sales, and Distribution Agreement, dated March 27, 2013. “Company Benefit Plans” means all “employee benefit plans” as defined in Section 3(3) of ERISA and all bonus, stock option, stock purchase, stock appreciation rights, restricted stock, stock-based or other equity-based, incentive, profit-sharing, deferred compensation, vacation, insurance, medical, welfare, fringe, retirement, retiree medical or life insurance, supplemental retirement, severance, termination or change in control or other benefit plans, programs or arrangements, and all employment, consulting, termination, severance or other contracts or agreements, whether or not in writing and whether or not funded, to which the Company is a party, with respect to which the Company has any obligation or which are maintained, contributed to or sponsored by the Company for the benefit of any Service Provider of the Company. “Company Material Adverse Effect” means any effect, change, circumstance, development or event that, individually or in the aggregate, is or would reasonably be expected to (A) be materially adverse to the business, condition (financial or otherwise), results of operations, assets or liabilities of the Company or (B) materially delay, prevent, limit or impair the Company from performing its obligations under this Agreement in a timely manner or to consummate the transactions contemplated by this Agreement in a timely manner; provided, however, that, for purposes of clause (A) above, none of the following (nor the effects thereof) shall be deemed, individually or in the aggregate, to constitute, and none of the following (nor the effects thereof) shall be taken into account in determining whether there has been or will be, a Company Material Adverse Effect: (i) changes or conditions affecting the United States economy or financial markets or foreign economies or financial markets; (ii) changes in or developments in the industry in which the Company operates, including seasonal changes, (iii) any failure, in and of itself, by the Company to meet internal or other estimates, predictions, projections or forecasts of revenue, net income or any other measure of financial performance (it being understood that, with respect to clause (iii), the facts or circumstances giving rise or contributing to such failure to meet estimates, predictions, projections or forecasts may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect); (iv) any changes in Law or GAAP becoming effective after the date hereof; (v) changes or conditions resulting from acts of war, terrorism or nature or political or regulatory conditions; (vi) changes resulting from the announcement of the transactions contemplated by this Agreement (including, but not limited to, any resulting adverse changes in the Company’s relationship with its employees, customers, partners or suppliers), in each case to the extent resulting from the identity of Parent or any of its Affiliates as the acquirer of the Company; (vii) any changes in the price or trading volume of the Company Common Stock (it being understood that, with respect to clause (vii), the facts or circumstances giving rise or contributing to such changes in price or trading volume may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect); or (viii) any natural disasters or acts of God; provided, further, however, that clauses (i), (ii), (iv), (v) and (viii) shall not apply to the extent such effect, change, circumstance, development or event has had a disproportionate impact on the Company, compared to other participants in the industry. 3 “Company Product” means any frozen food product, including entrées, multi-serve trays, bag meals, plated meals, bulk-packed meal components (including cooked chicken or beef), pastas, soups, sauces, poultry, meat and fish specialties, and organic and vegetarian offerings manufactured or marketed by the Company and any other product manufactured or marketed by the Company. “Company Proxy Statement” means a proxy statement relating to the Company Stockholders Meeting. “Company Stockholders Meeting” means the special meeting of the stockholders of the Company to be held to consider the adoption and approval of this Agreement and the transactions contemplated hereby, including the Merger. “Competition Law” means any merger control law or regulation that is applicable to the transactions contemplated by this Agreement. “Contracts” means any contract, agreement, indenture, note, bond, loan, license, instrument, lease or any other legally binding commitment, plan, arrangement or understanding, whether oral or written. “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of stock or as trustee or executor, by Contract or credit arrangement or otherwise. “Default Rate” means an interest rate (which shall in no event be higher than the rate permitted by applicable Law) equal to 8% per annum. “Environmental Laws” means any and all international, federal, state, local or foreign Laws, statutes, ordinances, regulations, treaties, policies, guidance, rules, judgments, orders, writs, court decisions or rule of common law, stipulations, injunctions, consent decrees, permits, restrictions and licenses, which (a) regulate or relate to the protection or clean-up of the environment; the use, treatment, storage, transportation, handling, disposal or release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or the health and safety of Persons or property, including protection of the health and safety of employees; or (b) impose liability or responsibility with respect to any of the foregoing, including CERCLA, or any other law of similar effect. 4 “Environmental Permits” means any permit, approval, identification number, license and other authorization required under any applicable Environmental Law. “Equity Interest” means any share, capital stock, partnership interest, membership interest or similar interest in any Person, and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable thereto or therefor. “ERISA” means the Employee Retirement Income Security Act of 1974. “ERISA Affiliate” of any entity means any other entity which, together with such entity, would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA. “ERISA Affiliate Liability” means all liabilities (a) under Section 302 of ERISA, (b) under Title IV of ERISA, (c) under Sections 412 or 4971 of the Code, in the case of clauses (a), (b) and (c), that are imposed on the Company under or in respect of an employee benefit plan solely by reason of the treatment of the Company as a single employer with another Person as a result of the application of Sections 414(b), (c), (m) or (o) of the Code or by reason of the treatment of the Company as under common control with another Person as a result of the application of Section 4001(b) of ERISA, and (d) in respect of a “multiemployer plan” (within the meaning of ERISA) that are imposed on the Company on a so-called “controlled group” basis, including under Section 414 of the Code. “Expense Reimbursement Amount” means with respect to any Person, all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket legal fees, financial advisory fees, and other consulting fees) incurred by such Person or its Affiliates in connection with the transactions contemplated herein, including costs incurred in connection with due diligence, negotiation and preparation of this Agreement and the documents contemplated herein (including the Financing), in an aggregate amount not exceeding $2,000,000. “Expenses” includes all reasonable and documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants to a party hereto and its Affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby, including the preparation, printing, filing and mailing of the Company Proxy Statement, and any solicitation of stockholder approvals and all other matters related to the transactions contemplated by this Agreement. 5 “GAAP” means generally accepted accounting principles as applied in the United States. “Governmental Entity” means any nation, federal, state, county municipal, local or foreign government, or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, including any court thereof. “group” has the meaning ascribed to it in the Exchange Act, except where the context otherwise requires. “Hazardous Substances” means any pollutant, chemical, substance, and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, or any infectious agent or biological material, whether solid, liquid or gas, that is subject to regulation, control or remediation under any Environmental Laws, including any quantity of asbestos in any form, urea formaldehyde, PCBs, radon gas, mold, crude oil or any fraction thereof, all forms of natural gas, petroleum products or by-products or derivatives. “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976. “Intellectual Property Rights” means all (a) U.S. and foreign patents and patent applications and disclosures relating thereto (and any patents that issue as a result of those patent applications), and any renewals, reissues, reexaminations, extensions, continuations, continuations-in-part, divisions and substitutions relating to any of the patents and patent applications, as well as all related foreign patents and patent applications that are counterparts to such patents and patent applications, (b) U.S. and foreign trademarks, service marks, trade dress, logos, trade names, taglines, brand names and corporate names, whether registered or unregistered, and the goodwill associated therewith, together with any registrations and applications for registration thereof, (c) U.S. and foreign copyrights, mask works, designs and rights under copyrights, whether registered or unregistered, including moral rights, and any registrations and applications for registration thereof, (d) rights in databases and data collections (including knowledge databases, customer lists and customer databases) under the laws of the United States or any other jurisdiction, whether registered or unregistered, and any applications for registration therefor, (e) Trade Secrets, (f) URL and Internet domain name registrations, Internet addresses and other computer identifiers, (g) inventions (whether or not patentable) and improvements thereto, (h) all claims and causes of action arising out of or related to infringement or misappropriation of any of the foregoing and (i) other proprietary, industrial or intellectual property rights now known or hereafter recognized in any jurisdiction worldwide. “IRS” means the United States Internal Revenue Service. “Key Employee” means any employee of the Company with a base annual salary in excess of $100,000. 6 “Knowledge” of a Person means the actual knowledge of the Chief Executive Officer, the Chief Financial Officer, Vice President of Finance, Senior Vice President of Production and Quality Control, Vice President of Human Resources and Vice President of Cost Accounting of the Company, in each case after reasonable inquiry. “Labor Laws” means all Laws as they relate to employment, employment practices and terms and conditions of employment, including Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.), the calculation and payment of wages, equal employment opportunity (including Laws prohibiting discrimination and/or harassment on the basis of race, national origin, religion, gender, disability, age, workers’ compensation, or any other protected classification), affirmative action, workers’ compensation, unemployment, the payment of social security, employment of minors, health and safety, labor relations, unions, withholding, wages and hours and overtime of any kind, pay equity, employee classification, family and medical leave, the Immigration Reform and Control Act, the Worker Adjustment and Retraining Act of 1998 and any similar applicable Laws. “Law” means any federal, state, local or foreign law, statute, code, ordinance, rule, regulation, order, judgment, writ, stipulation, award, injunction, decree or arbitration award or finding. “Leased Real Property” means all real property leased, licensed or otherwise occupied by the Company. “Lien” means any lien, mortgage, pledge, conditional or installment sale agreement, encumbrance, covenant, condition, restriction, charge, option, lease, license, right of first refusal, easement, security interest, deed of trust, right-of-way, encroachment, community property interest or other claim or restriction of any nature, whether voluntarily incurred or arising by operation of Law (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset). “Parent Material Adverse Effect” means any change, event, development, condition, occurrence or effect that prevents or materially delays, or would reasonably be expected to prevent or materially delay, consummation of the Merger or performance by Parent or Merger Sub of any of their material obligations under this Agreement. “Permitted Liens” means (a) Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established on the Financial Statements in accordance with GAAP, (b) Liens in favor of vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, construction or similar liens incurred in the ordinary course of business or other encumbrances arising by operation of Law and for which appropriate reserves have been established on the Financial Statements in accordance with GAAP, (c) Non-monetary Liens that do not, individually or in the aggregate, materially detract from the value or materially interfere with any present or intended use of such property or assets and (d) Liens in favor of Bank of America, N.A. pursuant to the Revolving Credit Facility and the “Loan Documents” referenced therein. 7 “Person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Exchange Act). “Personal Data” means a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card number, bank information, or biometric identifiers or any other piece of information that, alone or in combination with other information held by the Company, allows the identification of or contact with a natural person or can be used to identify a natural person. “Revolving Credit Facility” means the Credit Agreement, dated as of September 24, 2010, between the Company, as the borrower, and Bank of America, N.A., as the sole initial lender and administrative agent, as amended. “Securities Act” means the Securities Act of 1933. “Software” means computer software, programs and databases in any form, including Internet web sites, web content and links, source code, executable code, tools, menus, and all versions, updates, corrections, enhancements and modifications thereof, and all related documentation related thereto. “Specified Governmental Entity” means any Governmental Entity in the United States or any State thereof. “Subsidiary” of Parent, the Company or any other Person means any corporation, partnership, joint venture or other legal entity of which Parent, the Company or such other Person, as the case may be (either alone or through or together with any other Subsidiary), owns, directly or indirectly, a majority of the stock or other Equity Interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation, partnership, joint venture or other legal entity. “Superior Proposal” means a written and bona fide Acquisition Proposal (except the references therein to “20%” will be replaced by “50.1%” and the parenthetical phrases in clauses (c) and (d) therein will, in each instance, be replaced by the phrase “and 50.1% or more of each class of equity securities”) made by a third party that the Company Board has determined in its good faith judgment, after consultation with its outside legal counsel and with its financial advisors, is reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial (including the availability of committed financing) and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction that is more favorable to the Company’s stockholders, from a financial point of view, than the Merger (after giving effect to all adjustments to the terms thereof which may be irrevocably offered by Parent). 8 “Taxes” means (i) any and all federal, state, provincial, local, foreign and other taxes, levies, fees, imposts, duties, and similar governmental charges (including any interest, fines, assessments, penalties or additions to tax imposed in connection therewith or with respect thereto) including (x) taxes imposed on, or measured by, income, franchise, profits or gross receipts, and (y) ad valorem, value added, capital gains, sales, goods and services, use, real or personal property, capital stock, license, branch, payroll, estimated withholding, employment, social security (or similar), unemployment, compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, transfer and gains taxes, and customs duties, (ii) any and all liability for the payment of any items described in clause (i) above as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined, unitary or aggregate group or being included (or being required to be included) in any Tax Return related to such group and (iii) any and all liability for the payment of any amounts as a result of any express or implied obligation to indemnify any other person, or any successor or transferee liability, in respect of any items described in clause (i) or (ii) above. “Tax Return” means any report, return (including information return), claim for refund or declaration filed with any Governmental Entity with respect to Taxes, including any schedule or attachment thereto, and including any amendments thereof. “Technology” means tangible embodiments of Intellectual Property Rights, whether in electronic, written or other media, including Software, technical documentation, specifications, designs, build instructions, test reports, schematics, algorithms, formulae, test vectors, databases, lab notebooks, processes, prototypes, materials, samples, studies, or other know-how and other works of authorship. “Trade Secrets” means trade secrets and other rights in know-how and confidential or proprietary information (including any business plans, designs, technical data, customer data, financial information, pricing and cost information, bills of material, or other similar information). “Treasury Regulations” means regulations promulgated by the United States Department of the Treasury under the Code. “Triggering Event” will be deemed to have occurred if: (a) the Company Board (or a committee thereof) effects a Change of Board Recommendation (whether or not in compliance with Section 6.3); (b) the Company enters into any Alternative Acquisition Agreement; (c) the Company Board (or a committee thereof) publicly recommends to its stockholders any Acquisition Proposal; (d) an Acquisition Proposal has been publicly disclosed (other than by the commencement of a tender offer or exchange offer), and the Company Board shall have failed to publicly reaffirm the Company Board Recommendation within three Business Days after Parent’s written request therefor; (e) a tender offer or exchange offer for securities of the Company is commenced and the Company Board shall have failed to recommend against acceptance by the Company’s stockholders of such tender offer or exchange offer (including for these purposes, by taking any position contemplated by Rule 14e-2 under the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten Business Days of such commencement; (f) the Company materially breaches its obligations under Section 6.3 or Section 6.4; or (g) the Company Board (or a committee thereof) formally resolves to take or announces its intention to take any of the foregoing actions. 9 “Uncured Inaccuracy” with respect to a representation or warranty of a party to the Agreement as of a particular date will be deemed to exist only if such representation or warranty is inaccurate as of such date as if such representation or warranty were made as of such date, and the inaccuracy in such representation or warranty has not been cured in all material respects since such date; provided, however, that if such representation or warranty by its terms speaks as of the date of the Agreement or as of another particular date, then there will not be deemed to be an Uncured Inaccuracy in such representation or warranty unless such representation or warranty was inaccurate as of the date of the Agreement or such other particular date, respectively, and the inaccuracy in such representation or warranty has not been cured in all material respects since such date. 1.2Terms Defined Elsewhere. The following terms are defined elsewhere in this Agreement, as indicated below: Term Section Agreement Preamble Alternative Acquisition Agreement 6.3(a)(ii) Alternative Financing Articles of Merger Book-Entry Shares 3.2(b) Breach Notice 8.1(g) Breakup Fee 8.2(b) Certificates 3.2(b) Change of Board Recommendation 6.3(d) Closing Closing Date Collective Bargaining Agreement 4.13(b) Commitment Letter Company Preamble Company Articles 4.1(c) Company Board Recitals Company Board Recommendation Recitals Company Bylaws 4.1(c) Company Common Stock Recitals Company Disclosure Letter 4 Company Employee 6.7(a) Company Financial Advisor Company Financial Statements 4.7(a) Company Material Contract 4.14(a) Company Options 3.3(a) Company Permits 4.6(a) Company Preferred Stock 4.2(a) 10 Term Section Company Representatives Company SEC Documents 4.7(a) Company Stock Option Plans 3.3(a) Company Stockholder Approval Confidentiality Agreement D&O Insurance 6.8(c) Effective Time ERISA Exchange Act Fairness Opinion FDA 4.26(a) Financing Food Authorities 4.26(a) FTC 4.26(a) Indemnity Provisions 6.8(a) Insurance Policies Licensed Intellectual Property 4.17(a) Material Intellectual Property 4.17(b) Merger Recitals Merger Consideration Recitals Merger Sub Preamble Merger Sub Common Stock 3.1(c) New Plans 6.7(b) Non-Required Remedy 6.5(e) Notice Period 5.3(f)(i) NRS Recitals NYSE Option Payments 3.3(a) Order 4.15(b) Other Interested Party 6.3(b) Outside Date 8.1(f) Owing Party 8.2(g) Owned Intellectual Property 4.17(a) Parent Preamble Parent Disclosure Letter 5 Parent Group 8.3(b) Parent Representatives Parent Subsidiaries Parent Subsidiary Paying Agent 3.2(a) Proceeding 4.15(a) Registered Intellectual Property 4.17(a) Representatives Required Vote Reverse Termination Fee 8.2(f) 11 Term Section Sarbanes-Oxley Act 4.7(a) SEC 4.7(a) Section 16 Service Providers 4.12(a) Shares Recitals Subsequent Time 6.3(c) Surviving Corporation 2.1(a) USDA 4.26(a) Voting Agreements Recitals WARN 4.13(c) 1.3Interpretation. For purposes of this Agreement, whenever the context requires: the singular number will include the plural, and vice versa; the masculine gender will include the feminine and neuter genders; the feminine gender will include the masculine and neuter genders; and the neuter gender will include masculine and feminine genders. As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits,” “Annexes” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits, Annexes and Schedules to this Agreement. All references in this Agreement to “$” are intended to refer to U.S. dollars. Except as otherwise expressly provided herein, any Law defined or referred to herein will refer to such Law as amended and the rules and regulations promulgated thereunder. Unless otherwise specifically provided for herein, the term “or” will not be deemed to be exclusive. ARTICLE 2 THE MERGER 2.1The Merger. (a)Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the NRS, at the Effective Time, Merger Sub will be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub will cease, and the Company will continue as the surviving corporation of the Merger (the “Surviving Corporation”). The Merger will have the effects set forth in the applicable provisions of the NRS. Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub will vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation. (b)At the Effective Time, the articles of incorporation of the Surviving Corporation will, by virtue of the Merger, be amended and restated so as to read in their entirety in the form set forth as Exhibit A hereto, until thereafter changed or amended as provided therein or by applicable Law. In addition, the Company and the Surviving Corporation will take all necessary action such that, at the Effective Time, the bylaws of the Surviving Corporation will be amended and restated so as to read in their entirety in the form set forth as Exhibit B hereto, until thereafter changed or amended as provided therein or by applicable Law. 12 (c)The directors of Merger Sub immediately prior to the Effective Time will, at the Effective Time, be the directors of the Surviving Corporation, each to serve thereafter in such capacity in accordance with the articles of incorporation and bylaws of the Surviving Corporation until his or her successor shall have been duly elected or appointed and qualified, or until his or her earlier death, resignation or removal in accordance with the articles of incorporation and bylaws of the Surviving Corporation and applicable Law. The officers of the Company immediately prior to the Effective Time will, at the Effective Time, be the officers of the Surviving Corporation, each to serve thereafter in such capacity in accordance with the articles of incorporation and bylaws of the Surviving Corporation until his or her successor shall have been duly elected or appointed and qualified, or until his or her earlier death, resignation or removal in accordance with the articles of incorporation and bylaws of the Surviving Corporation and applicable Law. (d)If at any time after the Effective Time, the Surviving Corporation determines, in its sole discretion, or is advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement. 2.2Closing and Effective Time of the Merger. The closing of the Merger (the “Closing”) will take place at 10:00 a.m., Eastern time, on a date to be specified by the parties (the “Closing Date”), such date to be no later than the third Business Day after the satisfaction or waiver of all of the conditions set forth in Article 7 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing), at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York unless another time, date or place is agreed to in writing by the parties hereto; provided, however, that the Company shall not require Parent to close the transactions contemplated hereby during the time that the lenders under the Commitment Letter are marketing the syndication process pursuant to the terms thereof, which shall not exceed the earlier of (i) twenty Business Days from the bank meeting to complete such syndication process and (ii) twenty Business Days following the satisfaction or waiver of all of the conditions set forth in Section 7.1 and 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing). On the Closing Date, or on such other date as Parent and the Company may agree to in writing, Parent, Merger Sub and the Company will cause articles of merger (the “Articles of Merger”), to be executed and filed with the Secretary of State of the State of Nevada in accordance with the relevant provisions of the NRS and will make all other filings or recordings required under the NRS. The Merger will become effective at the time the Articles of Merger will have been duly filed with the Secretary of State of the State of Nevada or such later date and time as is agreed upon by the parties and specified in the Articles of Merger, such date and time hereinafter referred to as the “Effective Time.” 13 ARTICLE 3 CONVERSION OF SECURITIES IN THE MERGER 3.1Conversion of Securities. 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 any of the following securities: (a)Conversion of Company Common Stock. Each Share issued and outstanding immediately prior to the Effective Time, other than Shares to be cancelled in accordance with Section 3.1(b), will be converted into the right to receive the Merger Consideration, payable to the holder in cash, without interest, upon surrender of the certificate formerly representing such Shares in accordance with Section 3.2. At the Effective Time, all of the Shares shall cease to be outstanding, shall be cancelled and shall cease to exist, and each Certificate (as defined below) that immediately prior to the Effective Time represented any of the Shares (other than Shares to be cancelled in accordance with Section 3.1(b)) shall thereafter represent only the right to receive the Merger Consideration, without interest. (b)Cancellation of Treasury Stock and Parent-Owned Stock. All Shares that are held in the treasury of the Company, and all Shares owned of record by Parent, Merger Sub or any of their respective wholly-owned Subsidiaries, will be cancelled and will cease to exist, with no payment being made with respect thereto. (c)Merger Sub Common Stock. Each share of common stock, par value $0.01 per share, of Merger Sub (the “Merger Sub Common Stock”) issued and outstanding immediately prior to the Effective Time will be converted into and become one newly and validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, and such shares shall constitute the only shares of capital stock of the Surviving Corporation outstanding at the Effective Time. From and after the Effective Time, all certificates representing Merger Sub Common Stock shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the preceding sentence. 14 3.2Payment for Securities; Surrender of Certificates. (a)Paying Agent. At or prior to the Effective Time, Parent will designate a reputable bank or trust company, mutually agreeable to both Parent and the Company, to act as the paying agent for purposes of effecting the payment of the Merger Consideration in connection with the Merger (the “Paying Agent”). At or promptly after the Effective Time, Parent or Merger Sub will deposit, or cause to be deposited, with the Paying Agent the aggregate Merger Consideration to which holders of Shares will be entitled at the Effective Time pursuant to this Agreement, together with the aggregate Option Payments (except to the extent that Parent determines to make any such Option Payments to employees through the payroll of the Surviving Corporation). Such funds will be invested by the Paying Agent as directed by Parent, in its sole discretion, pending payment thereof by the Paying Agent to the holders of the Shares. Earnings from such investments will be the sole and exclusive property of Parent, and no part of such earnings will accrue to the benefit of holders of Shares. (b)Procedures for Surrender. As promptly as practicable after the Effective Time, Parent will cause the Paying Agent to mail to each holder of record of a certificate or certificates that represented Shares (the “Certificates”) or non-certificated Shares represented by book entry (“Book-Entry Shares”), in each case, which Shares were converted into the right to receive the Merger Consideration at the Effective Time pursuant to this Agreement: (i) a letter of transmittal, which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Paying Agent, and will otherwise be in such form and have such other provisions as Parent or the Paying Agent may reasonably specify and (ii) instructions for effecting the surrender of the Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration. Upon surrender of Certificates and Book-Entry Shares for cancellation to the Paying Agent or to such other agent or agents as may be appointed by Parent, and upon delivery of a letter of transmittal, duly executed and in proper form, with respect to such Certificates or Book-Entry Shares, the holder of such Certificates or Book-Entry Shares will be entitled to receive the Merger Consideration for each Share formerly represented by such Certificates and for each Book-Entry Share. Any Certificates and Book-Entry Shares so surrendered will forthwith be cancelled. All cash paid upon the surrender for exchange of Certificates and Book-Entry Shares will be deemed to have been paid in full satisfaction of all rights pertaining to Shares formerly represented by such Certificates or Book-Entry Shares. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Certificate is registered, it will be a condition precedent of payment that the Certificate so surrendered will be properly endorsed or will be otherwise in proper form for transfer, and the Person requesting such payment will have paid any transfer or similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered or will have established to the satisfaction of the Paying Agent that such Taxes either have been paid or are not payable. Any other transfer or similar Taxes incurred in connection with the transactions contemplated by this Agreement will be paid by the Person required to make such payment by applicable Law. Payment of the Merger Consideration with respect to Book-Entry Shares will only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated hereby, each Certificate or Book-Entry Share will be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration in cash as contemplated by this Agreement, without any interest accruing thereon. 15 (c)Transfer Books; No Further Ownership Rights in Shares. At the Effective Time, the stock transfer books of the Company will be closed and thereafter there will be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of Certificates and Book-Entry Shares outstanding immediately prior to the Effective Time will cease to have any rights with respect to such Shares except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, then (subject to compliance with the exchange procedures of Section 3.2(b)) they will be cancelled and exchanged as provided in this Agreement. (d)Termination of Fund; Abandoned Property; No Liability. At any time following the six-month anniversary of the Effective Time, the Surviving Corporation will be entitled to require the Paying Agent to deliver to it any funds (including any interest accrued with respect thereto) made available to the Paying Agent and not disbursed to holders of Certificates or Book-Entry Shares, and thereafter such holders will be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) only as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates or Book-Entry Shares and compliance with the procedures in Section 3.2(b), without interest. If, immediately prior to the second anniversary of the Effective Time (or otherwise immediately prior to such time on which any payment in respect hereof would escheat to or become the property of any Governmental Entity pursuant to any applicable abandoned property, escheat or similar Laws), any holder of Certificates or Book-Entry Shares has not complied with the procedures in Section 3.2(b) to receive payment of the Merger Consideration to which such holder would otherwise be entitled, the payment in respect of such Certificates or Book-Entry Shares will, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent will be liable to any holder of a Certificate or Book-Entry Shares for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. (e)Lost, Stolen or Destroyed Certificates. In the event that any Certificates have been lost, stolen or destroyed, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Merger Consideration payable in respect thereof pursuant to Section 3.1(a) hereof; provided, however, that Parent may, in its discretion and as a condition precedent to the payment of such Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against Parent, Merger Sub, the Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed. 16 (f)Withholding Rights. Notwithstanding anything to the contrary herein, each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Shares such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any other applicable state, local or foreign Tax Law. To the extent that amounts are so withheld by the Surviving Corporation or Parent, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be. 3.3Treatment of Company Options; Stock Plans. (a)Treatment of Company Options. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that, immediately prior to the Effective Time, each unexpired and unexercised option to purchase Shares (the “Company Options”), under any stock option plan of the Company or any other plan, agreement or arrangement (the “Company Stock Option Plans”), whether or not then exercisable or vested, will be cancelled and, in exchange therefor, each former holder of any such cancelled Company Option will only be entitled to receive, in consideration of the cancellation of such Company Option and in full settlement therefor, a payment in cash of an amount equal to the product of (A) the total number of Shares previously subject to such Company Option and (B) the excess, if any, of the Merger Consideration over the exercise price per Share of such cancelled Company Option, less applicable withholding taxes (such amounts payable hereunder being referred to as the “Option Payments”). From and after the Effective Time, any such cancelled Company Option will be void and of no further force or effect and no longer be exercisable by the former holder thereof, and such holder shall only be entitled to the payment of the Option Payment. (b)Termination of Company Stock Option Plans. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that, immediately prior to the Effective Time, all Company Stock Option Plans will be terminated and no further Company Options or other rights with respect to Shares will be granted thereunder. (c)Corporate Actions. At or prior to the Effective Time, the Company, the Company Board and the compensation committee of the Company Board, as applicable, shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of this Section 3.3. The Company shall take all actions necessary to ensure that from and after the Effective Time neither Parent nor the Surviving Corporation will be required to deliver to any Person any Shares or other Equity Interests of
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