1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made as of
December 28, 1999, by and among Meridian Point Realty Trust `83, a California
business trust (the "Company"), Liberty Self-Stor Limited Partnership, a
Maryland limited partnership (the "Limited Partnership"), and Liberty Self-Stor,
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 defined in Section 1.2) 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), 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
1
2
(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) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. local time 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 waived 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 VI 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, if any, of the Limited
Partnership, as in effect at the Effective Time, 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 Articles of Incorporation of the New
2
3
Company, as in effect at the Effective Time, attached hereto as Exhibit A, shall
be the Articles of Incorporation 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, attached hereto as Exhibit B, 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, Chief Executive
Officer and Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Director
▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
▇▇▇▇ ▇. ▇▇▇▇▇▇ Secretary and Director
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President, Chief Operating Officer and
Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Chief Financial Officer and Assistant
Secretary
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President of Operations
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 the following committees and 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:
AUDIT COMMITTEE
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
COMPENSATION COMMITTEE
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
3
4
▇▇▇▇ ▇. ▇▇▇▇▇▇
The foregoing committees shall have the same functions and powers delegated to
the same committees of the board of trustees of the Company as set forth in the
minutes of the board of trustees of the Company, as may be revised from time to
time by the Board of Directors of the New Company.
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 share of beneficial interest, $1.00 par value, of the Company
(the "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 common stock, $0.001 par value per share ("Common
Stock"), of the New Company. At the Effective Time, all Shares shall no longer
be outstanding and shall be canceled and retired and shall cease to exist.
(b) Each 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.
(c) 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.
(d) At the Effective Time, each share of Common Stock 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 Common Stock.
4.2. STOCK CERTIFICATES. From and after the Effective Time, (i) each
certificate which immediately prior to the Effective Time represented one Share
(each, a "Certificate") shall be deemed for all purposes to represent ownership
of one share of Common 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
4
5
respect to and to receive any dividends and other distributions upon the shares
of Common Stock represented by any such outstanding Certificate as provided
above. Nothing contained herein shall be deemed to require the holder of any
Shares to surrender any Certificate(s) representing such shares in exchange for
a certificate or certificates representing shares of Common Stock.
ARTICLE V
CONDITIONS
5.1. CONDITIONS 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 Shares in accordance with applicable law and the Amended
and Restated Declaration of Trust and Trustee By-laws of the Company, (ii) the
New Company as the general partner of the Limited Partnership, and (iii) the
Company, as the sole stockholder of the New Company.
(c) 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.
(d) The obligations to consummate the Mergers contemplated hereby shall
not have been terminated or abandoned pursuant to Article VI hereof.
(e) 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 Shares, by the mutual consent of the
Board of 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
5
6
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 and construed in
accordance with the laws of the State 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.
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
6
7
convenience of reference only and shall have no effect on the construction or
meaning of this Agreement.
7.8. SERVICE OF PROCESS. 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, and the agreement for
services of process of the New Company is CSC-Lawyers Incorporating Services
Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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.
LIBERTY SELF-STOR, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
LIBERTY SELF-STOR LIMITED
PARTNERSHIP
By: LIBERTY SELF-STOR, INC.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
MERIDIAN POINT REALTY TRUST `83
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
7