Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made as of
November 12, 1998, by and among Capital Trust, a California business trust (the
"Company"), Captrust Limited Partnership, a Maryland limited partnership (the
"Limited Partnership"), and Capital Trust, Inc., a Maryland corporation (the
"New Company").
PRELIMINARY STATEMENT
The Board of Trustees of the Company has determined that it is
advisable and in the best interest of the Company to reorganize from a business
trust organized under the laws of the State of California into a corporation
incorporated under the laws of the State of Maryland. In connection with the
foregoing reorganization, the Company has formed the Limited Partnership and the
New Company as direct or indirect wholly-owned subsidiaries of the Company. The
parties hereto desire to effect the Mergers (as hereinafter defined) upon the
terms and subject to the conditions set forth herein.
Accordingly, in consideration of these premises, the covenants and
agreements made herein and for other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto adopt the
plan of merger encompassed by this Agreement and agree as follows:
ARTICLE I
THE MERGERS; CLOSING; EFFECTIVE TIME
1.1. THE LIMITED PARTNERSHIP MERGER. Subject to the terms and
conditions of this Agreement, at the Effective Time (as defined in Section 1.4),
the Company shall be merged with and into the Limited Partnership and the
separate existence of the Company shall thereupon cease (the "Limited
Partnership Merger"). The Limited Partnership shall be the surviving entity in
the Limited Partnership Merger (sometimes hereinafter referred to as the
"Surviving Limited Partnership"), shall continue to be governed by the laws of
the State of Maryland and the separate existence of the Limited Partnership with
all its rights, privileges, immunities, powers and franchises shall continue
unaffected by the Limited Partnership Merger.
The Limited Partnership Merger shall have the effects specified in the
Maryland Revised Uniform Limited Partnership Act (the "MRULPA").
1.2. THE COMPANY MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.4 hereof), the
Surviving Limited
Partnership shall be merged with and into the New Company and the separate
existence of the Surviving Limited Partnership shall thereupon cease (the
"Company Merger" and, together with the Limited Partnership Merger, the
"Mergers"). The New Company shall be the surviving entity in the Company Merger
(sometimes hereinafter referred to as the "Surviving Corporation") and shall
continue to be governed by the laws of the State of Maryland and the separate
existence of the New Company with all its rights, privileges, immunities, powers
and franchises shall continue unaffected by the Mergers.
The Company Merger shall have the effects specified in the Maryland
General Corporation Law (the "MGCL").
The parties intend that the Mergers qualify as a reorganization under
Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
1.3. CLOSING. The closing of the Mergers (the "Closing") shall take
place (i) at the offices of the New Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. local time on the first business day on which
the last to be fulfilled or waived of the conditions set forth in Section 5.1
hereof shall be fulfilled or (ii) at such other place and time and/or on such
other date as the Company, the Limited Partnership and the New Company may
agree.
1.4. EFFECTIVE TIME. Following the fulfillment or waiver of the
conditions set forth in Section 5.1 hereof, and provided that this Agreement has
not been terminated or abandoned pursuant to Article VII hereof, the Company and
the Limited Partnership will, at such time as they deem advisable, cause
Articles of Merger (the "Partnership Articles of Merger") to be filed with the
State Department of Assessments and Taxation of Maryland (the "SDAT") as
provided in Section 10-208(d) of the MRULPA. Following the fulfillment or waiver
of the conditions set forth in Section 5.1 hereof, provided that this Agreement
shall not have been terminated or abandoned pursuant to Article VI hereof, the
Surviving Limited Partnership and the New Company will, at such time as they
deem advisable, cause Articles of Merger (the "Company Articles of Merger") to
be filed with the SDAT as provided in Section 3-107 of the MGCL. The Mergers
shall become effective upon the acceptance for record of the Partnership
Articles of Merger and the Company Articles of Merger by the SDAT (the
"Effective Time"). The parties hereto intend the Mergers to become effective
simultaneously.
ARTICLE II
CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP
OF THE SURVIVING LIMITED PARTNERSHIP AND THE
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1. SURVIVING LIMITED PARTNERSHIP. The certificate of limited
partnership and agreement of limited partnership of the Limited Partnership in
effect at the Effective Time
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shall be the certificate of limited partnership and agreement of limited
partnership of the Surviving Limited Partnership, until duly amended in
accordance with the terms thereof and the MRULPA.
2.2. SURVIVING CORPORATION. The charter of the New Company, as in
effect at the Effective Time, shall be amended by the Articles of Amendment and
Restatement in the form attached hereto as Exhibit A, the Articles Supplementary
with respect to New Class A Preferred Stock (as defined below), in the form
attached hereto as Exhibit B, and the Articles Supplementary with respect to
Class B 9.5% Cumulative Convertible Non-Voting Preferred Stock, par value $.01
per share, of New Company, in the form attached hereto as Exhibit C
(collectively, the "Articles"), and the Articles shall be the charter of the
Surviving Corporation, until duly amended in accordance with the MGCL. The
Bylaws of the New Company, as in effect at the Effective Time, shall be amended
and restated in full, as set forth in the amended and restated Bylaws of the New
Company attached hereto as Exhibit D (the "Amended and Restated Bylaws"), and
said Amended and Restated Bylaws, as so amended and restated, shall be the
Bylaws of the Surviving Corporation, until duly amended in accordance with the
MGCL.
ARTICLE III
DIRECTORS AND EXECUTIVE OFFICERS AND
COMMITTEES OF THE BOARD OF DIRECTORS
OF THE SURVIVING CORPORATION
3.1. DIRECTORS AND OFFICERS. At or before the Effective Time, the
following persons shall be elected or appointed as the executive officers and
directors of the Surviving Corporation and such officers and directors shall
thereafter serve until their successors have been duly elected and qualified or
until their earlier death, resignation or removal in accordance with the charter
of the Surviving Corporation:
Name Office
---- ------
▇▇▇▇▇▇ ▇▇▇▇ Chairman of the Board and Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Director
▇▇▇▇▇▇ ▇▇▇▇ Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice Chairman and Director
▇▇▇▇ ▇. ▇▇▇▇▇ Vice Chairman, Chief Executive
Officer and Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chief Operating Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director
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Name Office
---- ------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Managing Director and Chief
Investment Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III Managing Director, Chief
Financial Officer and Assistant
Secretary
3.2. COMMITTEES OF THE BOARD OF DIRECTORS. At or before the Effective
Time, the board of directors of the Surviving Corporation shall create and
constitute committees with the same names, memberships and functions and powers
delegated to them as the committees of the Board of Trustees of the Company in
existence at the Effective time as set forth in the minutes of the Board of
Trustees of the Company. Each member of such committee shall thereafter serve
until his successor shall have been duly appointed in accordance with the Bylaws
of the Surviving Corporation.
ARTICLE IV
EFFECT OF THE MERGER
ON SHARES OF BENEFICIAL INTEREST;
EXCHANGE OF CERTIFICATES
4.1. EFFECT ON STOCK. At the Effective Time, by virtue of the Mergers
and without any action on the part of the holders thereof:
(a) Each class A common share of beneficial interest, $1.00 par value,
in the Company (the "Class A Common Shares"), issued and outstanding immediately
prior to the Effective Time shall be converted into, and shall become, one
validly issued, fully paid and nonassessable share of class A common stock, par
value $.01 per share, of the New Company ("New Class A Common Stock"). At the
Effective Time, all Class A Common Shares shall no longer be outstanding and
shall be canceled and retired and shall cease to exist.
(b) Each class A 9.5% cumulative convertible share of beneficial
interest, $1.00 par value, in the Company (the "Class A Preferred Shares"),
issued and outstanding immediately prior to the Effective Time shall be
converted into, and shall become, one share of class A 9.5% cumulative
convertible preferred stock, par value $.01 per share, of the New Company (the
"New Class A Preferred Stock"). At the Effective Time, all Class A Preferred
Shares shall no longer be outstanding and shall be canceled and retired and
shall cease to exist.
(c) Each Class A Common Share and Class A Preferred Share issued and
held in the Company's treasury at the Effective Time shall, by virtue of the
Mergers and without any action on the part of the holder thereof, cease to be
outstanding, shall be canceled and retired without payment of any consideration
therefor and shall cease to exist.
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(d) At the Effective Time, each partnership interest in the Limited
Partnership existing immediately prior to the Effective Time shall, by virtue of
the Mergers and without any action on the part of the Limited Partnership or the
holder of such interests, be canceled and retired without payment of any
consideration therefor.
(e) At the Effective Time, each share of common stock, par value $.01
per share, of the New Company, issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Mergers and without any action on the
part of the New Company or the holder thereof, be canceled and retired without
payment of any consideration therefor, and such shares shall have the status of
unauthorized and unissued shares of New Class A Common Stock.
4.2. STOCK CERTIFICATES. From and after the Effective Time, (i) each
certificate which immediately prior to the Effective Time represented Class A
Common Shares (each, a "Common Certificate") shall be deemed for all purposes to
represent ownership of an equal number of, shares of New Class A Common Stock,
and (ii) each certificate which immediately prior to the Effective Time
represented Class A Preferred Shares (each a "Preferred Certificate," and
together with the Common Certificate, the "Certificates") shall be deemed for
all purposes to represent ownership of an equal number of, shares of New Class A
Preferred Stock. The registered owner on the books and records of the Company or
its transfer agent of any Certificate shall, until such Certificate shall have
been surrendered for transfer or otherwise accounted for to the Surviving
Corporation or its transfer agent, have and be entitled to exercise any voting
or other rights with respect to and to receive any dividends and other
distributions upon the shares of New Class A Common Stock or the New Class A
Preferred Stock, as the case may be, represented by any such outstanding
Certificate as provided above. Nothing contained herein shall be deemed to
require the holder of any Class A Common Shares or Class A Preferred Shares, as
the case may be, to surrender any Certificate(s) representing such shares in
exchange for a certificate or certificates representing shares of New Class A
Common Stock or the New Class A Preferred Stock.
4.3. OPTIONS. Each unit providing the right to acquire or an option to
purchase or otherwise acquire Class A Common Shares granted under the Company's
1997 Long-Term Incentive Share Plan and 1997 Non-Employee Trustee Share Plan
(collectively, the "Plans"), which is outstanding immediately prior to the
Effective Time shall, by virtue of the Mergers and without any action on the
part of the holder of such option or unit, be converted into and become a unit
providing the right to acquire or an option to purchase or otherwise acquire the
same number of shares of New Class A Common Stock, upon the same terms and
subject to the same conditions as set forth in the Plans as in effect at the
Effective Time. The same number of shares of New Class A Common Stock shall be
reserved for purposes of the outstanding options as is equal to the number of
Class A Common Shares so reserved as of the Effective Time. As of the Effective
Time, the Surviving Corporation assumes the Plans and all obligations of the
Company under the Plans, including the outstanding units or options or portions
thereof granted pursuant to the Plans.
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ARTICLE V
CONDITIONS
5.1. CONDITION TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of the Company, the Limited Partnership and the New
Company to consummate the Mergers are subject to the fulfillment of each of the
following conditions:
(a) The registration statement on Form S-4 to be filed by the New
Company, which will include the proxy statement of the Company soliciting
proxies to approve the Mergers, shall have been declared effective in accordance
with the Securities Act of 1933, as amended, by the Securities and Exchange
Commission and no stop order shall have been issued or threatened.
(b) This Agreement shall have been duly approved by (i) the requisite
vote of holders of the Class A Common Shares and Class A Preferred Shares, in
accordance with applicable law and the amended and restated declaration of trust
and by-laws of the Company, (ii) the New Company as the general partner of the
Limited Partnership, and (iii) the Company, as the sole shareholder of the New
Company.
(c) The shares of New Class A Common Stock to be issued in the Mergers
and the shares of New Class A Common Stock underlying the New Class A Preferred
Stock to be issued in the Mergers shall have been listed on the New York Stock
Exchange, subject to official notice of issuance.
(d) No order to restrain, enjoin or otherwise prevent the consummation
of this Agreement or either of the Mergers shall have been entered by any court
or administrative body and shall remain in full force and effect.
(e) The obligations to consummate the Mergers contemplated hereby shall
not have been terminated pursuant to Article VI hereof.
(f) All consents and approvals, if any, necessary for the transactions
contemplated hereby shall have been obtained and be in full force and effect.
ARTICLE VI
TERMINATION
6.1. TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated
and the Mergers may be abandoned at any time prior to the Effective Time, before
or after the approval by holders of the Class A Common Shares and the Class A
Preferred Shares, by the
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mutual consent of the Board of the Trustees of the Company and the general
partner of the Limited Partnership and the Board of Directors of the New
Company.
6.2. EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination
of this Agreement and abandonment of the Mergers pursuant to this Article VI, no
party hereto (or any of its directors, trustees or officers) shall have any
liability or further obligation to any other party to this Agreement.
ARTICLE VII
MISCELLANEOUS AND GENERAL
7.1. INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. From and
after the Effective Time, the Surviving Corporation will indemnify, and pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to, (i) any individual who is a present or former trustee or officer of the
Company or the Limited Partnership or its general partner or (ii) any individual
who, while a trustee of the Company and at the request of the Company, serves or
has served another corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise as a director, officer, partner or trustee
of such corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, arising out of or pertaining to matters existing or occurring
at or prior to the Effective Time, whether asserted or claimed prior to, at or
after the Effective Time, to the fullest extent required or permitted by
Maryland law.
7.2. MODIFICATION OR AMENDMENT. Subject to the applicable provisions of
the MRULPA and the MGCL, at any time prior to the Effective Time, the parties
hereto may amend or modify this Agreement by written agreement, executed and
delivered by duly authorized officers of the respective parties; provided,
however, that after the Mergers have been approved by the Company's
shareholders, no amendment or modification may change the amount or form of the
consideration to be received by such shareholders in the Mergers.
7.3. WAIVER OF CONDITIONS. The conditions to each of the parties'
obligations to consummate the relevant Merger are for the sole benefit of such
party and may be waived by such party in whole or in part to the extent
permitted by applicable law.
7.4. COUNTERPARTS. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
agreement.
7.5. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the States of California and Maryland in the case
of the Limited Partnership Merger, and in accordance with the laws of the State
of Maryland in the case of the Company Merger.
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7.6. NO THIRD PARTY BENEFICIARIES. Except as provided in Section 7.1,
no provision of this Agreement is intended, nor shall it be interpreted, to
provide or create any third party beneficiary rights or any other rights of any
kind in any client, customer, affiliate, stockholder, partner or employee or any
other person or entity.
7.7. HEADINGS. The Article, Section and Paragraph headings herein are
for convenience of reference only and shall have no effect on the construction
or meaning of this Agreement.
7.8. SERVICE OF PROCESS.
(a) The New Company may be served with process in the State of Maryland
in any proceeding for the enforcement of any obligation of the Company or the
Limited Partnership, as well as for enforcement of any obligations of the New
Company arising from the Mergers. The resident agent in the State of Maryland is
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto on the date first
hereinabove written.
CAPITAL TRUST, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CAPTRUST LIMITED PARTNERSHIP
By: CAPITAL TRUST, INC.,
its general partner
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
CAPITAL TRUST
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Managing Director and
Chief Financial Officer
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