-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Cw1w7GnNjWuBWMLsB0NvPV1TT1edpOhyVKw4YBBgEodpe1Gre9QFCpW/7NXmabEn p0e290jvihOiJfhpwBMyyQ== 0001104659-10-015676.txt : 20100322 0001104659-10-015676.hdr.sgml : 20100322 20100322171217 ACCESSION NUMBER: 0001104659-10-015676 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20100322 DATE AS OF CHANGE: 20100322 GROUP MEMBERS: AGRICORE UNITED HOLDINGS INC. GROUP MEMBERS: BLUEBIRD ACQUISITION CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DAKOTA GROWERS PASTA CO INC CENTRAL INDEX KEY: 0001166347 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS FOOD PREPARATIONS & KINDRED PRODUCTS [2090] IRS NUMBER: 450423511 STATE OF INCORPORATION: ND FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79971 FILM NUMBER: 10697198 BUSINESS ADDRESS: STREET 1: ONE PASTA AVENUE CITY: CARRINGTON STATE: ND ZIP: 58421 BUSINESS PHONE: 7016522855 MAIL ADDRESS: STREET 1: ONE PASTA AVENUE CITY: CARRINGTON STATE: ND ZIP: 58421 FORMER COMPANY: FORMER CONFORMED NAME: DAKOTA GROWERS PASTA CO DATE OF NAME CHANGE: 20020709 FORMER COMPANY: FORMER CONFORMED NAME: DAKOTA GROWERS RESTRUCTURING CO INC DATE OF NAME CHANGE: 20020131 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: VITERRA INC /FI CENTRAL INDEX KEY: 0001102707 IRS NUMBER: 000000000 STATE OF INCORPORATION: A9 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2625 VICTORIA AVE CITY: REGINA STATE: A9 ZIP: S4T 7T9 BUSINESS PHONE: 306-569-4200 MAIL ADDRESS: STREET 1: 2625 VICTORIA AVE CITY: REGINA STATE: A9 ZIP: S4T 7T9 FORMER COMPANY: FORMER CONFORMED NAME: SASKATCHEWAN WHEAT POOL / /FI DATE OF NAME CHANGE: 20000106 SC 13D 1 a10-6575_9sc13d.htm SC 13D

	UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549

	SCHEDULE 13D

(Rule 13d-101. Information to be Included in Statements Filed Pursuant to Section 240.13d-1(a)

and Amendments Thereto Filed Pursuant to Section 240.13d-2(a))

Under the Securities Exchange Act of 1934
(Amendment No. )

Dakota Growers Pasta Company, Inc.

(Name of Issuer)

Common Stock, Par Value $0.01 Per Share

(Title of Class of Securities)

23422P106

(CUSIP Number)

Kevin Barbero

Viterra Inc.

2625 Victoria Avenue

Regina, Saskatchewan, Canada S4T 7T9

(306) 569-4200

with a copy to:

Brian J. Fahrney

Pran Jha

Sidley Austin LLP

One South Dearborn

Chicago, Illinois

(312) 853-7000

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

March 10, 2010

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

CUSIP No. 23422P106

	1	Name of Reporting Persons Viterra Inc.

	2	Check the Appropriate Box if a Member of a Group
		(a)			x
		(b)			o

	3	SEC Use Only

	4	Source of Funds WC

	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e) o

	6	Citizenship or Place of Organization Canada

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 0

			8	Shared Voting Power 3,493,692 (1)(2)

			9	Sole Dispositive Power 0

			10	Shared Dispositive Power 0

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,493,692 (1)(2)

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 29.53%

	14	Type of Reporting Person CO

(1) Represents (i) 2,428,692 shares of common stock, par value $0.01 per share (“Issuer Common Stock”), of Dakota Growers Pasta Company, Inc., a North Dakota corporation (the “Issuer”) and (ii) 1,065,000 shares of Issuer Common Stock that are issuable upon the conversion of 1,065,000 shares of Series F convertible preferred stock, par value $.01 per share (the “Series F Shares”), of the Issuer, both of which are subject to the Tender and Support Agreements (defined in Item 3 hereof).

(2) Beneficial ownership of 3,493,692 shares of Issuer Common Stock referred to herein is being reported hereunder solely because Viterra Inc. (“Viterra”) may be deemed to have beneficial ownership of such shares as a result of the Tender and Support Agreements (defined in Item 3 hereof). Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Viterra that it is the beneficial owner of any shares of Issuer Common Stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or for any other purpose, and such beneficial ownership is expressly disclaimed by Viterra.

CUSIP No. 23422P106

	1	Name of Reporting Persons Agricore United Holdings Inc.

	2	Check the Appropriate Box if a Member of a Group
		(a)			x
		(b)			o

	3	SEC Use Only

	4	Source of Funds WC

	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e) o

	6	Citizenship or Place of Organization Delaware

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 0

			8	Shared Voting Power 3,493,692 (1)(2)

			9	Sole Dispositive Power 0

			10	Shared Dispositive Power 0

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,493,692 (1)(2)

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 29.53%

	14	Type of Reporting Person CO

(1) Represents (i) 2,428,692 shares of Issuer Common Stock and (ii) 1,065,000 shares of Issuer Common Stock that are issuable upon the conversion of 1,065,000 Series F Shares of the Issuer, both of which are subject to the Tender and Support Agreements (defined in Item 3 hereof).

(2) Beneficial ownership of 3,493,692 shares of Issuer Common Stock referred to herein is being reported hereunder solely because Agricore United Holdings Inc. may be deemed to have beneficial ownership of such shares as a result of the Tender and Support Agreements (defined in Item 3 hereof). Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Agricore United Holdings Inc. that it is the beneficial owner of any shares of Issuer Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed by Agricore United Holdings Inc.

CUSIP No. 23422P106

	1	Name of Reporting Persons Bluebird Acquisition Corporation

	2	Check the Appropriate Box if a Member of a Group
		(a)			x
		(b)			o

	3	SEC Use Only

	4	Source of Funds AF

	5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e) o

	6	Citizenship or Place of Organization North Dakota

Number of Shares Beneficially Owned by Each Reporting Person With			7	Sole Voting Power 0

			8	Shared Voting Power 3,493,692 (1)(2)

			9	Sole Dispositive Power 0

			10	Shared Dispositive Power 0

	11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,493,692 (1)(2)

	12	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares o

	13	Percent of Class Represented by Amount in Row (11) 29.53%

	14	Type of Reporting Person CO

(2) Beneficial ownership of 3,493,692 shares of Issuer Common Stock referred to herein is being reported hereunder solely because Bluebird Acquisition Corporation may be deemed to have beneficial ownership of such shares as a result of the Tender and Support Agreements (defined in Item 3 hereof). Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by Bluebird Acquisition Corporation that it is the beneficial owner of any shares of Issuer Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed by Bluebird Acquisition Corporation.

Item 1. Security and Issuer.

This Schedule 13D (this “Schedule 13D”) relates to the common stock, par value $0.01 per share (“Issuer Common Stock”), of Dakota Growers Pasta Company, Inc., a North Dakota corporation (the “Issuer”). The principal executive offices of the Issuer are located at One Pasta Ave., Carrington, ND 58421.

Item 2. Identity and Background.

This Schedule 13D is being filed by Vittera Inc., a corporation incorporated under the laws of Canada (“Viterra”), Agricore United Holdings Inc. a corporation incorporated under the laws of Delaware and a wholly-owned subsidiary of Viterra (“Parent”) and Bluebird Acquisition Corporation, a corporation incorporated under the laws of North Dakota and a wholly-owned subsidiary of Parent (“Merger Sub”), pursuant to Rule 13d-1(a) of Regulation D-G under the Exchange Act.

The address of the principal executive offices of Viterra is 2625 Victoria Avenue, Regina, SK S4T 7T9, Canada. Viterra and its subsidiaries operate in five interrelated business areas: grain handling and marketing, agri-products, food processing, feed products and financial services. Viterra and its subsidiaries provide premium quality ingredients to leading global food manufacturers through extensive agribusiness operations across Western Canada, Australia, and New Zealand, with Adelaide, Australia as the base for Viterra’s Southeast Asian operations. Viterra’s international presence also extends to operations in the United States, offices in Japan, Singapore, China, Switzerland and India.

Parent is the holding company for Viterra’s U.S. operations. Parent’s principal executive offices are located at 2625 Victoria Avenue, Regina, Saskatchewan, Canada S4T 7T9.

Merger Sub’s principal executive offices are located at 2625 Victoria Avenue, Regina, Saskatchewan, Canada S4T 7T9. Merger Sub was formed on March 2, 2010 solely for the purpose of engaging in the Offer (as defined below), the Merger (as defined below) and the other transactions contemplated by the Merger Agreement (as defined below) and has not engaged, and does not expect to engage, in any other business activities.

Set forth in Schedule I hereto, which is incorporated herein by reference, is the name, business address, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted and the citizenship, of each of Viterra’s, Parent’s and Merger Sub’s directors and executive officers, as of the date hereof. Other than such directors and executive officers, there are no persons controlling Viterra, Parent or Merger Sub.

During the last five years, none of Viterra, Parent, Merger Sub or, to the knowledge of Viterra, Parent and Merger Sub, any of the persons listed on Schedule I: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such entity or person was or is subject to a judgment, decree or final order enjoining future

violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration.

Pursuant to the Tender and Support Agreements, dated as of March 10, 2010 (the “Tender and Support Agreements”), among Parent, Merger Sub and each of MVC Capital, Inc., La Bella Holdings LLC, Timothy J. Dodd and Edward O. Irion (collectively, the “Stockholders”), Viterra, Parent and Merger Sub may be deemed to be the beneficial owner of 3,493,692 shares of Issuer Common Stock (collectively, the “Subject Shares”). Parent, Merger Sub and the Stockholders entered into the Tender and Support Agreements to induce Parent and Merger Sub to enter into the Agreement and Plan of Merger, dated as of March 10, 2010 (the “Merger Agreement”), among Parent, Merger Sub and the Issuer. Pursuant to the Merger Agreement, (i) Merger Sub will make a tender offer (the “Offer”) to purchase all of the issued and outstanding shares of Issuer Common Stock at a price of $18.28 per share in cash (the “Common Offer Price”) and all of the issued and outstanding shares of Series D preferred stock of Dakota Growers at a price of $0.10 per share in cash, without interest and less any required withholding taxes, and (ii) after acceptance of the tendered shares of Issuer Common Stock and Series D preferred stock for payment by Merger Sub and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Issuer (the “Merger”), with the Issuer continuing as the surviving corporation in the Merger (the “Surviving Corporation”) as a wholly-owned subsidiary of Parent. In the Merger, each share of Issuer Common Stock will be converted into the right to receive $18.28 in cash and each share of Series D preferred stock will be converted into the right to receive $0.10 per share in cash, without interest and less any required withholding taxes. The descriptions of the Merger Agreement and the Tender and Support Agreements contained herein are qualified in their entirety by reference to such agreements, which are attached hereto as Exhibits 1 through 5. Any beneficial ownership of Viterra, Parent or Merger Sub in Issuer Common Stock that may be deemed to arise as a result of the Tender and Support Agreements is not expected to require the expenditure of any funds.

Item 4. Purpose of Transaction.

(a)-(b) The Tender and Support Agreements were entered into as (i) a condition to the willingness of Parent and Merger Sub to enter into the Merger Agreement and (ii) to increase the likelihood that the Minimum Condition (as defined in the Merger Agreement) to the Offer will be satisfied. See the response to Item 3 for a more complete description of the Offer. The terms of the Tender and Support Agreements apply to the Subject Shares of the Stockholders as set forth in the signature pages to the Tender and Support Agreements, which are attached hereto as Exhibits 2 through 5.

(d) The Merger Agreement provides that, upon Merger Sub’s acceptance for payment and payment for all shares of Issuer Common Stock validly tendered and not validly withdrawn pursuant to the Offer, and at all times thereafter, Parent will be entitled to designate up to such number of directors to the Issuer’s Board of Directors equal to the product (rounded up to the next whole number) obtained by multiplying (i) the number of directors of the Issuer’s Board of Directors and (ii) a fraction, the numerator of which is the number of shares of Issuer Common Stock held by Parent and Merger Sub, and the denominator of which is the total number of then outstanding shares of Issuer Common Stock. The Merger Agreement further provides that the Issuer will be required to, promptly following a request by Merger Sub, subject to compliance with applicable law, take all necessary actions to cause Merger Sub’s designees to be elected or appointed to the Issuer’s Board of Directors either by increasing the size of the Issuer’s Board of Directors or securing the resignations of such number of incumbent directors as is necessary to enable Merger Sub’s designees to be appointed to the Issuer’s Board of Directors. In the event that Merger Sub’s designees are elected or appointed to the Issuer’s Board of Directors as provided for in the Merger Agreement, the Issuer’s Board of Directors shall have at least such number of directors as may be required by applicable law who are considered independent directors within the meaning of such laws (the “Independent Directors”); provided that in such event, if the number of Independent Directors shall be reduced below the number of directors as may be required by such laws for any reason whatsoever, the remaining Independent Director(s) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of the Merger Agreement, or, if no other Independent Director then remains, the other directors shall designate such number of directors as may be required by applicable law, to fill such vacancies, which directors shall not be stockholders or affiliates of Parent or Merger Sub, and such Persons shall be deemed to be Independent Directors for purposes of the Merger Agreement.

(e) Following the completion of the Merger, Viterra expects to amend and restate the certificate of incorporation and bylaws of the Surviving Corporation.

(f) Not applicable.

(g) Not applicable.

(h) Not applicable.

(i) Upon consummation of the Merger, Issuer Common Stock will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act.

(j) Other than as described above, Viterra does not currently have any plan or proposals that relate to, or may result in, any of the matters listed in Items 4(a) - (i) of Schedule 13D (although Viterra reserves the right to develop such plans).

Item 5. Interest in Securities of the Issuer.

(a)-(b) As a result of the Tender and Support Agreements, Viterra may be deemed to be a beneficial owner of the Subject Shares. The Subject Shares constitute approximately 29.53% of the issued and outstanding shares of Issuer Common Stock, based on (i) the Issuer’s

representation in the Merger Agreement that there were 10,764,932 shares of Issuer Common Stock issued and outstanding as of March 10, 2010 and (ii) the fact that, as a result of the Tender and Support Agreement among Parent, Merger Sub and MVC Capital, Inc., Viterra, Parent and Merger Sub may be deemed to be the beneficial owner of 1,065,000 Series F Shares, which are convertible into shares of Issuer Common Stock.

Pursuant to the Tender and Support Agreements, each of the Stockholders has, among other things, agreed (i) to tender all of its shares of Issuer Common Stock and, in the case of MVC Capital, Inc., to tender and convert all of its Series F Shares to shares of Issuer Common Stock, in accordance with the terms of its Tender and Support Agreement; (ii) to vote, and to irrevocably appoint Parent as its proxy and attorney-in-fact to vote, (A) in favor of the Merger, the adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement and (B) against (1) any alternative acquisition proposal, (2) any amendment of the Issuer’s organizational documents or other action, proposal, transaction or agreement involving the Issuer or any of its subsidiaries, which amendment or other action, proposal, transaction or agreement would in any manner impede, hinder, interfere with, frustrate, prevent, delay, adversely affect or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or (3) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or other obligation or agreement of the Stockholder under the Tender and Support Agreement or of the Issuer under the Merger Agreement; and (iii) to abide by certain restrictions on the transfer of the Subject Shares and on its ability to enter into any other arrangements inconsistent with the Tender and Support Agreement.

Each Tender and Support Agreement terminates upon the earlier to occur of (i) the consummation of the Merger, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) any amendment to the Merger Agreement entered into without the prior written consent of the Stockholder that is a party to such Tender and Support Agreement that (A) reduces the Minimum Condition (as defined in the Merger Agreement), (B) reduces the Common Offer Price (except as contemplated by Section 1.1(c) of the Merger Agreement) or (C) changes the form of consideration to be paid to holders of shares of Issuer Common Stock in the Offer.

(c) Neither Viterra nor, to its knowledge, any person named in Schedule I, has effected any transaction in Issuer Common Stock during the past 60 days.

(d) Not applicable.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Other than as described in Items 3, 4 and 5 and the agreements incorporated herein by reference and set forth as exhibits hereto, to the knowledge of Viterra, Parent and Merger Sub there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

Item 7. Material to be Filed as Exhibits.

The following documents are filed as exhibits:

Exhibit Number		Description of Exhibits

99.1		Agreement and Plan of Merger dated as of March 10, 2010, by and among Agricore United Holdings Inc., Bluebird Acquisition Corporation and Dakota Growers Pasta Company, Inc. (incorporated herein by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 11, 2010)

99.2		Tender and Support Agreement dated as of March 10, 2010, by and among Agricore United Holdings Inc., Bluebird Acquisition Corporation and MVC Capital, Inc.

99.3		Tender and Support Agreement dated as of March 10, 2010, by and among Agricore United Holdings Inc., Bluebird Acquisition Corporation and La Bella Holdings LLC.

99.4		Tender and Support Agreement dated as of March 10, 2010, by and among Agricore United Holdings Inc., Bluebird Acquisition Corporation and Timothy J. Dodd.

99.5		Tender and Support Agreement dated as of March 10, 2010, by and among Agricore United Holdings Inc., Bluebird Acquisition Corporation and Edward O. Irion.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: March 22, 2010	VITERRA INC.


	By:	/s/ Ray Dean
		Name: Ray Dean
		Title: Senior Vice President and General Counsel/Corporate Secretary


	By:	/s/ Colleen Vancha
		Name: Colleen Vancha
		Title: Senior Vice President Investor Relations & Corporate Affairs


Date: March 22, 2010	AGRICORE UNITED HOLDINGS INC.


	By:	/s/ Ray Dean
		Name: Ray Dean
		Title: President


	By:	/s/ Kevin Barbero
		Name: Kevin Barbero
		Title: Vice President


Date: March 22, 2010	BLUEBIRD ACQUISITION CORPORATION


	By:	/s/ Ray Dean
		Name: Ray Dean
		Title: President


	By:	/s/ Kevin Barbero
		Name: Kevin Barbero
		Title: Vice President

SCHEDULE I

Viterra Inc.

Directors and Executive Officers

Except as indicated below, each person’s business address is c/o Viterra Inc., 2625 Victoria Avenue, Regina, Saskatchewan, Canada S4T 7T9, and, except as noted below, each such person is a citizen of Canada.

Name	Position	Present Principal Occupation

		*Directors*

Thomas Birks	Director, Chairman of the Board	Mr. Birks joined Viterra’s Board of Directors in 2005 and was elected as Chair in April 2008. Currently, he is the President of Birinco Inc., a small merchant bank with investment portfolios ranging from private equity to passive investments.

Vic Bruce	Director	Mr. Bruce joined Viterra’s Board of Directors in 2002. Currently, Mr. Bruce is President of Sunrise Farms, a farming operation.

Thomas Chambers	Director	Mr. Chambers joined Viterra’s Board of Directors in 2006. He is an experienced professional accountant, senior executive, corporate director and business advisor, most notably having served for 26 years as a Partner in senior management roles with PricewaterhouseCoopers LLP. He is currently President of Senior Partner Services, Ltd, which provides the services of advisors and directors to a number of companies.

Paul Daniel	Director	Mr. Daniel is a farmer and serves on the Board’s Audit Committee. Prior to joining the Viterra Board in 2009, he was a Director of ABB Grain. Paul was elected to the ABB Grain board in 2006 and served as a member of the Finance and Audit Committee.

Bonnie DuPont	Director	Ms. DuPont joined Viterra’s Board of Directors in 2008. She is a Group Vice President with Enbridge Inc. in Calgary, a role in which she has accountability for the Corporate Resources function, Information Technology, Public & Government Affairs, Human Resources, Governance and Corporate Social Responsibility. Enbridge Inc. is an energy transportation and distribution company.

Perry Gunner	Director, Deputy Chairman	Mr. Gunner is Viterra’s Deputy Chairman of the Board. Prior to joining the Viterra Board in 2009, Mr. Gunner was appointed to the ABB Grain Board and as Chairman in 2004. He is also Chairman of Australian Bank Alliance, a joint venture between ABB Grain and Sumitomo. Prior to his appointment, Perry was Deputy Chairman of AusBulk (1997-2004).

Tim Hearn	Director	Mr. Hearn joined Viterra’s Board of Directors in 2008. Mr. Hearn served as Chairman, President and Chief Executive Officer of Imperial Oil Limited from the time of his appointment in 2002 to his retirement in 2008. Mr. Hearn is also presently the Chairman of Hearn and Associates.

Dallas Howe	Director	Mr. Howe joined Viterra’s Board of Directors in 2005. He previously served in a management role with GE Healthcare Information Technologies (2002-2005), which acquired the company he formerly owned, BDM Information Systems. He is currently the CEO of DSTC Ltd., a technology investment company.

Kevin Osborn	Director	Mr. Osborn is a member of the Viterra Board Audit Committee and the Safety, Health and Environment Committee. Prior to joining the Viterra Board in 2009, he was a Director of ABB Grain. Mr. Osborn was the Deputy Chairman of the Bendigo and Adelaide Bank Limited.

Larry Ruud	Director	Mr. Ruud joined Viterra’s Board of Directors in 2008. He was a partner with Meyers Norris Penny LLP from 2000 until 2009, and has provided farm management consulting services in Western Canada for the past 15 years. He is currently the President and CEO of One Earth Farms, which is a large-scale, fully-integrated corporate farming entity.

Mayo M. Schmidt	Director, President and Chief Executive Officer	Mr. Schmidt became the President and Chief Executive Officer, as well as a Director of Viterra, in 2005. Mr. Schmidt is a citizen of the United States and Canada.

Max Venning	Director	Mr. Venning is a farmer and a member of the Viterra Board Compensation Committee. Prior to joining the Viterra Board he was a Deputy Chairman of ABB Grain. Mr. Venning was a previous director of AusBulk and United Grower Holdings Ltd (2002 — 2004) and was Chairman of AusBulk in 2004.

		*Executive Officers*

Francis Malecha	Chief Operating Officer of Viterra	Mr. Malecha became Viterra’s Chief Operating Officer in June 2007. He was previously Viterra’s Senior Vice-President of the Grain Group. Mr. Malecha is a citizen of the United States.

Rex McLennan	Chief Financial Officer	Mr. McLennan became Viterra’s Chief Financial Officer in 2008. Prior to January 29, 2008, Mr. McLennan served as Executive Vice-President and Chief Financial Officer for Vancouver 2010, the organizing committee for the 2010 Olympic and Paralympic Winter Games and prior to that, was Executive Vice-President and Chief Financial Officer for Placer Dome Inc.

Rob Gordon	President Southeast Asia and Senior Vice-President	Mr. Gordon became Viterra’s President, Australia, New Zealand and Southeast Asia and Senior Vice President in January 2010. Prior to January 2010, Mr. Gordon was CEO and Managing Director of Dairy Farmers Pty Ltd. in Sydney and, prior to that, was Managing Director, Goodman Fielder Consumer Foods Pty Ltd. Mr. Gordon is a citizen of Australia.

Steven Berger	Senior Vice-President, Human Resources & Transformation	Mr. Berger became Viterra’s Senior Vice-President of Human Resources and Transformation in November 2007. Prior to joining Viterra, Mr. Berger was a Senior Executive (Partner), Corporate Strategy/M&A Practice with Accenture. Mr. Berger is citizen of the United States.

Donald Chapman	Senior Vice-President, International Grain	Mr. Chapman is Viterra’s Senior Vice-President, International Grain and joined the Company in October 2007. Prior to October 2007, Mr. Chapman was Managing Director — Chief Trader at Toepfer International, Asia Pte Ltd.

Ray Dean	Senior Vice-President and General Counsel/Corporate Secretary	Mr. Dean joined Viterra in November 2003 as Vice-President, General Counsel/Corporate Secretary, and was appointed to Senior Vice-President, General Counsel & Corporate Secretary in March 2009. Prior to joining Viterra, Mr. Dean was a Partner with Balfour Moss LLP.

Karl Gerrand	Senior Vice	Mr. Gerrand has served as the Senior Vice-President, Food Processing, of

	President, Food Processing	Viterra since 2009 and prior to this appointment was the President of Can-Oat Milling and Senior Vice-President of Viterra.

Robert Miller	Senior Vice-President, North American Grain	Mr. Miller became Viterra’s Senior Vice President, Grain — North America in June 2007. Prior to April 2005, Mr. Miller was Senior Merchandising Manager, Grain Operations at General Mills Inc. Mr. Miller is a citizen of the United States.

William Mooney	Senior Vice-President, Feed Products	Mr. Mooney became Viterra’s Senior Vice-President, Feed Products, in November 2008.

Andrew Muirhead	Senior Vice-President, Corporate Development	Mr. Muirhead became Viterra’s Senior Vice-President, Corporate Development in January 2008. Prior to his appointment, Mr. Muirhead was on sabbatical commencing October 1, 2007 and, prior to that, was Vice-President and Director of Investment Banking at TD Securities Inc.

George Prosk	Senior Vice-President, Financial Products	Mr. Prosk is Viterra’s Senior Vice-President, Financial Products. Prior to June 2007, Mr. Prosk was Vice-President of Financial Markets at United Grain Growers Limited, carrying on business as Parent.

Colleen Vancha	Senior Vice-President, Investor Relations & Corporate Affairs	Ms. Vancha became Viterra’s Senior Vice-President of Investor Relations and Corporate Affairs Division in March 2009.

Doug Wonnacott	Senior Vice-President, Agri-Products	Mr. Wonnacott became Viterra’s Senior Vice-President of Agri-Products in December 2007. Prior to coming to Viterra, Mr. Wonnacott was Vice-President of Agriliance LLC. Mr. Wonnacott is a citizen of the United States and Canada.

Mike Brooks	Chief Information Officer and Vice-President Information Technology	Mr. Brooks, became Viterra’s Senior Vice President and Chief Information Officer in February 2010.

Ron Cameron	Vice-President, Group Controller	Mr. Cameron became Viterra’s Vice President, Group Controller, in February 2005. Prior to his appointment, Mr. Cameron was Vice-President and Chief Financial Officer at Saskferco Products Inc.

Grant P. Theaker	Vice President & Treasurer	Mr. Theaker became Viterra’s Vice President and Treasurer in June 2007.

Agricore United Holdings, Inc. and Bluebird Acquisition Corporation

Directors and Executive Officers

Except as indicated below, each person’s business address is c/o Viterra Inc., 2625 Victoria Avenue, Regina, Saskatchewan, Canada S4T 7T9, and each such person is a citizen of Canada.

Name	Position	Present Principal Occupation

		*Directors and Officers*

Ray Dean	Director and President of Parent and Merger Sub	Mr. Dean joined Viterra in November 2003 as Vice-President, General Counsel/Corporate Secretary, and was appointed to Senior Vice-President, General Counsel & Corporate Secretary in March 2009. Prior to joining Viterra, Mr. Dean was a Partner with Balfour Moss LLP.

Kevin Barbero	Director and Vice-President of Parent and Merger Sub	Mr. Barbero has served as Corporate Counsel to Viterra since June 2006.

Jocelyn Torjusen	Secretary of Parent and Merger Sub	Ms. Torjusen has served as Assistant Corporate Secretary and Manager of Legal Administration of Viterra since 2004.

EX-99.2 2 a10-6575_9ex99d2.htm EX-99.2

Exhibit 99.2

EXECUTION COPY

TENDER AND SUPPORT AGREEMENT

TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of March 10, 2010, among AGRICORE UNITED HOLDINGS INC., a Delaware corporation (“Parent”), BLUEBIRD ACQUISITION CORPORATION, a North Dakota corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and the undersigned stockholder (the “Stockholder”) of DAKOTA GROWERS PASTA COMPANY, INC., a North Dakota corporation (the “Company”).

WHEREAS, Parent, Merger Sub and the Company propose to enter into an Agreement and Plan of Merger dated as of even date herewith (as the same may be amended or supplemented from time to time, the “Merger Agreement”) to provide for the making of a cash tender offer (as such offer may be amended from time to time, the “Offer”) by Merger Sub for any and all shares of (i) common stock, par value $.01 per share, of the Company (the “Common Shares”) at the Common Offer Price and (ii) Series D Non-Cumulative Delivery Preferred Stock, par value $.01 per share of the Company (the “Series D Shares”), at the Series D Offer Price, and the merger of the Company and Merger Sub (the “Merger”);

WHEREAS, the Stockholder legally and/or beneficially owns that number of Common Shares, Series D Shares and/or shares of Series F Convertible Preferred Stock, par value $.01 per share, of the Company (“Series F Shares”) appearing on the signature page hereof (Common Shares, Series D Shares and Series F Shares legally and/or beneficially owned by the Stockholder, whether owned on the date hereof or thereafter acquired, as they may be adjusted by any stock dividend, stock split, recapitalization, combination or exchange of shares, merger, consolidation, reorganization or other change or transaction of or by the Company (each, an “Adjustment Event”), and any additional Common Shares that become legally and/or beneficially owned by the Stockholder as the result of the exercise or conversion, as the case may be, of any stock option, warrant, Series F Shares or other security after the date hereof, being referred to herein as the “Subject Shares”); and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Merger Sub have requested that the Stockholder enter into this Agreement;

NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in consideration of their entering into, the Merger Agreement, and in consideration of the premises and the representations, warranties and agreements contained herein, the parties agree as follows:

1. Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as follows:

(a) Organization. The Stockholder, if it is a corporation, partnership, limited liability company, trust or other entity, is duly organized, validly existing and in good standing under the laws of the jurisdiction under which it is organized.

(b) Authority. The Stockholder has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated

hereby. If the Stockholder is an individual, he or she has full legal capacity, right and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Stockholder (and its board of directors or similar governing body, as applicable) and constitutes a valid and binding obligation of the Stockholder enforceable against the Stockholder in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the terms hereof will not, conflict with, result in any violation of or default (with or without notice or lapse of time or both) under, (A) if the Stockholder is not an individual, any provision of its articles of incorporation, bylaws or similar organizational documents, or (B) any provision of any material trust agreement, loan or credit agreement, note, bond, security agreement, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law or ordinance applicable to the Stockholder or to the Stockholder’s property or assets. Except for the expiration or termination of any required waiting period under the HSR Act and informational filings with the SEC, no consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic, foreign or supranational, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the consummation by the Stockholder of the transactions contemplated hereby.

(c) The Shares. The Stockholder has good and marketable title to the Subject Shares, free and clear of any claims, liens, encumbrances, security interests, proxies, voting trusts or agreements, options, rights or any other encumbrances whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares. Other than the Subject Shares, the Stockholder owns no Common Shares, Series D Shares, Series F Preferred Shares or other equity securities of the Company. None of the Subject Shares is subject to any voting agreement or proxy on the date of this Agreement, other than this Agreement.

(d) Absence of Litigation. As of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of Stockholder, threatened against or affecting, the Stockholder or any of its properties or assets (including the Subject Shares) that could reasonably be expected to impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

(e) Opportunity to Review; Reliance. The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of its own choosing. The Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.

(f) Finders’ Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent, Merger Sub or the Company in respect of

this Agreement based upon any arrangement or agreement made by or on behalf of the Stockholder in its capacity as such.

2. Representations and Warranties of Parent and Sub. Parent and Merger Sub hereby represent and warrant to the Stockholder as follows:

(a) Organization. Parent and Merger Sub are duly incorporated, validly existing and in good standing under the laws of Delaware and North Dakota, respectively.

(b) Authority. Each of Parent and Merger Sub has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and Merger Sub, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub. This Agreement has been duly executed and delivered by Parent and Merger Sub and constitutes a valid and binding obligation of Parent and Merger Sub enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

3. Covenants of the Stockholder. During the term of this Agreement, the Stockholder agrees as follows:

(a) At any meeting of stockholders of the Company called to vote upon the Merger and the Merger Agreement or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval with respect to the Merger and the Merger Agreement is sought (including an approval by written consent), the Stockholder shall be present in person or represented by proxy, or otherwise cause, the Subject Shares (to the extent such Subject Shares have voting rights) to be counted for quorum purposes under applicable Law and shall vote (or cause to be voted) or deliver a written consent (or cause a written consent to be delivered) with respect to the Subject Shares (to the extent such Subject Shares have voting rights) (A) in favor of the Merger, the adoption of the Merger Agreement and the approval of the terms thereof and each of the other transactions contemplated by the Merger Agreement and (B) without limitation of the preceding clause (A), approval of any proposal to adjourn or postpone such meeting to a later date if there are not sufficient votes for approval of the Merger and adoption of the Merger Agreement on the date on which such meeting is held.

(b) At any meeting of stockholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which the Stockholder’s vote, consent or other approval is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares (to the extent such Subject Shares have voting rights) against (i) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of assets that constitute or account for over 15% of the consolidated net revenues, net income or assets of the Company and its subsidiaries, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any other Acquisition Proposal, (ii) any amendment of the Company’s

articles of incorporation or by-laws or other action, proposal, transaction or agreement involving the Company or any of its subsidiaries, which amendment or other action, proposal, transaction or agreement would in any manner impede, hinder, interfere with, frustrate, prevent, delay, adversely affect or nullify the Offer, the Merger, the Merger Agreement or any of the other transactions contemplated by the Merger Agreement or (iii) any action, proposal, transaction or agreement that would reasonably be expected to result in a breach of any covenant, representation or warranty or other obligation or agreement of the Stockholder under this Agreement or of the Company under the Merger Agreement.

(c) The Stockholder agrees not to, directly or indirectly (i) Transfer, or enter into any contract, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of, the Subject Shares to any Person other than Merger Sub or Merger Sub’s designee, in each case pursuant to the Offer, or (ii) enter into any voting arrangement, whether by proxy, voting agreement, power of attorney or otherwise, with respect to the Subject Shares; provided, however, that the Stockholder may Transfer Subject Shares to any Person that is an Affiliate of the Stockholder so long as such Person agrees, in form and substance reasonably satisfactory to Parent, with respect to the Subject Shares that are Transferred to such Person, to be bound by the terms and conditions of this Agreement (each a “Permitted Transfer”). For purposes of this Agreement, “Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of (by merger (including by conversion into securities or other consideration), by tendering into any tender or exchange offer, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding to do any of the foregoing.

(d) The Stockholder shall not, nor shall the Stockholder knowingly permit any director, partner, officer, employee, accountant, consultant, legal counsel, investment banker, financial advisor, broker, finder or agent or other representative of the Stockholder to, (i) directly or indirectly, solicit, initiate, encourage or facilitate any inquiry, offer or proposal with respect to, or that constitutes or would reasonably be expected to lead to, an Acquisition Proposal or a proposal to acquire any of the Subject Shares or (ii) directly or indirectly, enter into, continue or otherwise engage or participate in any discussions or negotiations with respect to an Acquisition Proposal or provide information to any Person with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal or a proposal to acquire any of the Subject Shares.

(e) The Stockholder agrees to validly tender or cause to be tendered all of the Subject Shares within ten Business Days following commencement of the Offer pursuant to and in accordance with the terms of the Offer and, provided that this Agreement has not been terminated, the Stockholder agrees not to withdraw or cause to be withdrawn any Subject Shares so tendered prior to the termination of the Offer.

(f) The Stockholder agrees that with respect to any Series F Shares included in the Subject Shares, the Stockholder shall validly tender or cause to be tendered, in accordance with Section 3(e), the Common Shares to be received upon conversion of such Series F Shares, and Parent and Merger Sub hereby acknowledge and agree that the tender of the Series F Shares in accordance with this Section 3(f) will be deemed a valid

tender pursuant to the Offer of the Stockholder’s Common Shares to be received upon conversion of such Series F Shares, which shall satisfy the Stockholder’s obligations under Section 3(e) with respect to such Series F Shares (and such Common Shares to be received upon conversion of such Series F Shares). In connection with such tender, the Stockholder shall deliver to the depositary for the Offer within ten Business Days following commencement of the Offer all of the Stockholder’s Series F Shares included in the Subject Shares. Simultaneously with such tender, the Stockholder shall deliver to the Company a letter of instruction duly executed by the Stockholder, instructing the Company to convert all of the Stockholder’s Series F Shares into Common Shares and to immediately deliver such Common Shares to the depositary for the Offer on behalf of the Stockholder as shares tendered pursuant to the Offer, which conversion of the Stockholder’s Series F Shares and tender of the Common Shares received upon such conversion shall be deemed effective upon receipt by the Company (with a copy delivered to the Stockholder) of a duly executed certificate of an executive officer of Parent stating that (1) all of the conditions to the Offer (other than the Minimum Condition) have been satisfied or waived, (2) upon conversion by the Stockholder of its Series F Shares into Common Stock and the tender of such Common Stock in accordance with Section 3(e), the Minimum Condition will have been satisfied and (3) Merger Sub has the financial means available to, and will, promptly following such conversion and tender by the Stockholder, accept for payment all such Common Shares validly tendered in the Offer and not theretofore withdrawn.

(g) The Stockholder agrees, while this Agreement is in effect, to promptly notify Parent of the number of any new Subject Shares acquired by the Stockholder, if any, after the date hereof. Any such shares shall be subject to the terms of this Agreement as though owned by the Stockholder on the date hereof.

(h) The Stockholder hereby waives any preemptive rights with respect to any Subject Shares in connection with the consummation of the transactions contemplated by the Merger Agreement, including, without limitation, the exercise of the Top-Up Option.

4. Documentation and Information. The Stockholder consents to and authorizes the publication and disclosure by Parent of (a) the Stockholder’s identity and holding of the Subject Shares, (b) the nature of the Stockholder’s commitments, arrangements and understandings under this Agreement (including, for the avoidance of doubt, the disclosure of this Agreement) and (c) any other information, in each case, that Parent reasonably determines is required to be disclosed by applicable Law in any press release, the Offer Documents, the Proxy Statement (including all schedules and documents filed with the SEC), or any other disclosure document in connection with the Offer, the Merger and any transactions contemplated by the Merger Agreement. The Stockholder agrees to promptly (x) provide Parent with any information Parent may reasonably require for the preparation of any such disclosure documents and (y) notify Parent of any required corrections with respect to any information supplied by the Stockholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or misleading in any material respect.

5. Grant of Proxy. (a) The Stockholder hereby grants to, and appoints, Parent and each of its designees, and each of them individually, as the Stockholder’s proxy and attorney-in-fact, for and in the name, place and stead of the Stockholder, to attend any and all meetings of the Company’s stockholders and to vote the Subject Shares (to the extent they have

voting rights), or execute one or more written consents in respect of the Subject Shares (to the extent they have voting rights) solely in the manner described in Sections 3(a) and 3(b). THE FOREGOING PROXY SHALL BE DEEMED TO BE A PROXY COUPLED WITH AN INTEREST AND IS IRREVOCABLE; PROVIDED, HOWEVER, THAT SUCH PROXY SHALL BE AUTOMATICALLY REVOKED, WITHOUT NOTICE OR OTHER ACTION BY ANY PERSON, UPON THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 8. The Stockholder authorizes such attorney-in-fact to substitute any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary of the Company. The Stockholder hereby affirms that the proxy set forth in this Section 5 is given in connection with and granted in consideration of and as an inducement to Parent and Merger Sub to enter into the Merger Agreement and that such proxy is given to secure the obligations of the Stockholder under Sections 3(a) and 3(b). The Stockholder shall retain at all times the right to vote the Subject Shares in the Stockholder’s sole discretion and without any other limitation on those matters other than those set forth in the first sentence of this Section 5 that are at any time or from time to time presented to the Company’s stockholders for consideration.

(b) The Stockholder represents and warrants that any proxies heretofore given in respect of the Subject Shares are revocable, and that any such proxies have been or are hereby revoked.

6. Further Assurances. The Stockholder will, from time to time, take such actions and execute and deliver, or cause to be executed and delivered, such additional or further transfers, assignments, endorsements, consents and other instruments as Parent or Merger Sub may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement.

7. Parties in Interest; Assignment. This Agreement shall inure to the benefit of and be binding upon the parties named herein and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any Person other than Parent, Merger Sub or the Stockholder, or their permitted successors or assigns, any rights or remedies under or by reason of this Agreement. Notwithstanding the foregoing, neither the Stockholder, on the one hand, nor Parent or Merger Sub, on the other hand, may assign this Agreement or any of his or its respective rights, interests or obligations hereunder (whether by operation of law or otherwise) without the prior written approval of the other; provided that (i) Parent and Merger Sub may transfer or assign their respective rights and obligations under this Agreement, in whole or from time to time in part, to one or more of their Affiliates at any time and (ii) the Stockholder may (subject to Section 3(c)) transfer or assign its rights and obligations under this Agreement to any Person in connection with a Permitted Transfer; provided, further, that any such transfer or assignment shall not relieve Parent, Merger Sub or the Stockholder, as applicable, of its obligations under this Agreement.

8. Termination. Except as otherwise provided herein, this Agreement shall terminate upon the earlier of (a) the Effective Time (b) a valid termination of the Merger Agreement in accordance with its terms, or (c) any amendment to the Merger Agreement entered into without the prior written consent of the Stockholder that reduces the Minimum Condition, reduces the Common Offer Price (except as contemplated by Section 1.1(c) of the Merger Agreement) or changes the form of consideration to be paid to holders of Common Shares in the Offer; provided, however, that the provisions of Sections 7, 8 and 11 shall survive any

termination of this Agreement. For avoidance of doubt, upon termination of this Agreement pursuant to this Section 8, all obligations of the Stockholder hereunder, including, without limitation, the obligation to tender the Subject Shares pursuant to Sections 3(e) and 3(f), shall terminate immediately and be of no further force and effect. Nothing in this Section 8 shall relieve or otherwise limit any party of liability for willful breach of this Agreement.

9. Waiver of Appraisal Rights. The Stockholder hereby irrevocably waives any and all rights it may have as to appraisal, dissent or any similar or related matter with respect to any of the Stockholder’s Subject Shares that may arise with respect to the Merger or any of the transactions contemplated by the Merger Agreement.

10. Notices of Certain Events. Each party to this Agreement (the “Notifying Party”) shall promptly notify the other parties of any development occurring after the date hereof that causes, or that would reasonably be expected to cause, any breach of any of the representations and warranties of the Notifying Party set forth in this Agreement.

11. General Provisions.

(a) Expenses. Except as otherwise expressly provided in the Merger Agreement, each party hereto shall pay its own expenses incurred in connection with this Agreement.

(b) Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by the parties hereto in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof in any court of the United States or any state thereof having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. Each party hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware and the Federal Courts of the United States of America located in the State of Delaware in any action, suit or proceeding arising in connection with this Agreement and agrees that any such action, suit or proceeding shall be brought only in such courts (and waives any objection based on forum non conveniens or any other objection to venue therein). Each party hereto waives any right to a trial by jury in connection with any such action, suit or proceeding.

(c) Notice. All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally, one day after being delivered to an overnight courier or when telecopied (with a confirmatory copy sent by overnight courier) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

(i) if to Parent or Merger Sub, to:

Viterra Inc.
2625 Victoria Avenue
Regina, Saskatchewan, Canada S4T 7T9

Attention: General Counsel
Fax no.: (306) 569-5133

with a copy to:

Sidley Austin LLP

One South Dearborn Street

Chicago, Illinois 60603

Attention: Brian J. Fahrney
Pran Jha

Facsimile No.: 312- 853-7036

(ii) if to the Stockholder, to:

c/o TTGA, adviser to MVC Capital, Inc.
287 Bowman Avenue, 2nd Floor
Purchase, NY 10577
Facsimile No.: 914-701-0315
Attention: Shivani Khurana

with a copy to:

Wildman, Harrold, Allen & Dixon LLP
225 West Wacker Drive
Suite 3000
Chicago, IL 60606
Facsimile No.: (312) 201-2555
Attention: John L. Eisel

(d) Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect to such transactions. This Agreement may not be changed, amended or modified orally, but only by an agreement in writing signed by the party against whom any waiver, change, amendment, modification or discharge may be sought.

(e) Headings. The section headings herein are for convenience only and shall not affect the construction of this Agreement.

(f) Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document. The exchange of copies of this Agreement and of signature pages by facsimile transmission, by electronic mail or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means, shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of an original Agreement for all purposes.

(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND WHOLLY PERFORMED WITHIN SUCH STATE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF, EXCEPT THAT MATTERS RELATING TO THE FIDUCIARY DUTIES OF THE COMPANY BOARD AND THE INTERNAL CORPORATE AFFAIRS OF THE COMPANY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH DAKOTA.

(h) Consent to Jurisdiction; Venue; Service of Process. In any action or proceeding between any of the parties arising out of or relating to this Agreement or any of the transactions contemplated hereby, each of the parties (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction over the matter is vested in the federal courts, any federal court sitting in the State of Delaware, (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in the Court of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction over the matter is vested in the federal courts, any federal court sitting in the State of Delaware, (c) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in the Court of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction over the matter is vested in the federal courts, any federal court sitting in the State of Delaware, and (d) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Court of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction over the matter is vested in the federal courts, any federal court sitting in the State of Delaware. Each of the parties hereto agrees that a final judgment in any such action or proceeding and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11(c). Nothing in this Agreement shall affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Law.

(i) Capitalized Terms. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in the Merger Agreement.

(j) Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement may be consummated as originally contemplated to the fullest extent possible.

(k) No Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

12. No Limitations on Actions of the Stockholder as a Director. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement is intended or shall require the Stockholder or any equityholder, director, officer, employee, representative or agent of the Stockholders, in such Person’s capacity as an officer or director of the Company (or as a member of any committee of the Company Board), to take or in any way limit any action that such Person may take in order to satisfy his fiduciary duties (as determined in good faith by such Person after consultation with outside legal counsel) as a director of the Company, including, without limitation, by taking any action with respect to an Acquisition Proposal that is permitted under Section 6.1 of the Merger Agreement.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, each of Parent and Merger Sub has caused this Agreement to be signed by its officer thereunto duly authorized and the Stockholder has duly signed this Agreement, all as of the date first written above.

	AGRICORE UNITED HOLDINGS INC.


	By:	/s/ Kevin Barbero
		Name: Kevin Barbero
		Title: Director

	By:	/s/ Jocelyn Torjusen
		Name: Jocelyn Torjusen
		Title: Secretary

	BLUEBIRD ACQUISITION CORPORATION

	By:	/s/ Kevin Barbero
		Name: Kevin Barbero
		Title: Director

	By:	/s/ Jocelyn Torjusen
		Name: Jocelyn Torjusen
		Title: Director


	MVC CAPITAL, INC.

	By:	/s/ Michael T. Torkaz
		Name: Michael T. Torkaz
		Title: Chairman


	Number of Common Shares owned by the Stockholder as of the date hereof:

	1,016,195

	Number of Series D Shares owned by the Stockholder as of the date hereof:

	N/A

	Number of Series F Shares owned by the Stockholder as of the date hereof:

	1,065,000

EX-99.3 3 a10-6575_9ex99d3.htm EX-99.3

Exhibit 99.3