EXHIBIT 3.8
AGREEMENT AND PLAN OF MERGER
OF
XXXXXXXX DEVELOPMENT COMPANY
(a Georgia corporation)
WITH AND INTO
MID-AMERICA APARTMENT COMMUNITIES, INC.
(a Tennessee corporation)
AGREEMENT AND PLAN OF MERGER (the "Agreement and Plan
of Merger"), dated as of November ___, 1997, by and between
XXXXXXXX DEVELOPMENT COMPANY, a corporation organized and
existing under the laws of the State of Georgia ("FDC") and
MID-AMERICA APARTMENT COMMUNITIES, INC., a corporation
organized and existing under the laws of the State of
Tennessee ("MAAC"), with reference to the following
recitals:
WITNESSETH:
WHEREAS, FDC is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Georgia. The entire authorized capital stock of FDC
consists of Ten Million (10,000,000) shares of common stock,
no par value per share (the "FDC Common Stock"), of which
two million five hundred forty-nine thousand four hundred
ninety-five (2,549,495) shares are issued and outstanding.
WHEREAS, MAAC is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Tennessee. The entire authorized capital stock of MAAC
consists of fifty million (50,000,000) shares of common
stock, par value $.01 per share (the "MAAC Common Stock"),
and five million (5,000,000) shares of preferred stock, of
which sixteen million eight hundred ninety-four thousand two
hundred thirty-two (16,894,232) shares of MAAC Common Stock
and three million nine hundred thirty-eight thousand eight
hundred thirty (3,938,830) shares of preferred stock are
issued and outstanding; and
WHEREAS, the Board of Directors of each of FDC and MAAC
and the shareholder(s) of FDC have adopted resolutions
approving this Agreement and Plan of Merger in accordance
with the Georgia Business Corporation Code (the "GBCC") and
the Tennessee Business Corporation Act (the "TBCA").
NOW, THEREFORE, the parties hereto, in consideration of
the mutual covenants herein contained and intending to be
legally bound, agree as follows:
I. Parties to Merger. FDC and MAAC (such
corporate parties to the merger being hereinafter sometimes
collectively referred to as the "Constituent Corporations")
shall effect a merger (the "Merger") in accordance with and
subject to the terms and conditions of this Agreement and
Plan of Merger.
II. Merger: Service of Process. At the Effective
Time (as defined in Section 3 hereof), FDC shall be merged
with and into MAAC, which latter corporation shall be, and
is hereinafter sometimes referred to as, the "Surviving
Corporation". The Surviving Corporation, which shall
continue to be governed by the laws of the State of
Tennessee, hereby agrees that it may be served with process
in the State of Georgia in any proceeding for enforcement
of any obligation of FDC, as well as for enforcement of any
obligation of the Surviving Corporation arising from the
Merger, and the Surviving Corporation hereby irrevocably
appoints the Secretary of State of the State of Georgia as
its agent to accept service of process in any such suit or
other proceedings. A copy of such process shall be mailed
by the Secretary of State of the State of Georgia to the
Surviving Corporation at 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxx 00000.
III. Filing and Effective Time. Articles of
Merger to be filed with the Secretary of the State of
Tennessee and a Certificate of Merger to be filed with the
Secretary of State of the State of Georgia (the "Merger
Articles") and such other documents and instruments as are
required by, and complying in all respects with, the GBCC
and the TBCA shall be delivered to the appropriate state
officials for filing. The Merger shall become effective
immediately upon filing of the Merger Articles (the
"Effective Time").
IV. Charter. At the Effective Time, the Charter
of MAAC shall be and thereafter remain the Charter of the
Surviving Corporation, until amended in accordance with
applicable law, and the Surviving Corporation shall continue
to be a corporation organized and governed by the laws of
the State of Tennessee.
V. Bylaws. At the Effective Time, the Bylaws of
MAAC shall be and thereafter remain the Bylaws of the
Surviving Corporation until altered, amended or repealed in
the manner therein provided in accordance with the Charter
and Bylaws of the Surviving Corporation and applicable law.
VI. Directors and Officers. At the Effective
Time, the directors and the officers of MAAC shall be the
directors and the officers of the Surviving Corporation;
each such director and officer shall hold office until his
resignation or removal, in accordance with the Charter and
Bylaws of the Surviving Corporation and applicable law.
VII. Effect of Merger. At the Effective Time, the
Merger shall have the effect set forth in the GBCC and the
TBCA.
VIII. Further Assurances. Each of the Constituent
Corporations shall use their best efforts to take action and
to do all things necessary in order to consummate and make
effective the actions contemplated in this Agreement and
Plan of Merger. If at any time the Surviving Corporation,
or its successors or assigns, shall consider to be advised
that any further assignments or assurances in law or any
other acts are necessary or desirable to (a) vest, perfect
or confirm, of record or otherwise, in the Surviving
Corporation its rights, title or interest in, to or under
any of the rights, properties or assets of FDC acquired or
to be acquired by the Surviving Corporation as a result of,
or in connection with, the merger, or (b) otherwise carry
out the purposes of this Agreement and Plan of Merger, FDC
and its proper officers and directors shall be deemed to
have granted to the Surviving Corporation an irrevocable
power of attorney to execute and deliver all such proper
deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and
possession of such rights, properties or assets in the
Surviving Corporation and otherwise to carry out the
purposes of this Agreement and Plan of Merger, and the
proper officers and directors of the Surviving Corporation
are fully authorized in the name of FDC or otherwise to take
any and all such action.
IX. Capital Stock. At the Effective Time:
(1) Each share of Common Stock of FDC
(other than any dissenting shares), without any action on
the part of the holder thereof, shall be converted into the
right to receive six hundred eight thousand eighty-nine
millionths (.608089) shares of MAAC Common Stock (the
"Conversion Ratio"). MAAC shall deliver the shares of MAAC
Common Stock at, or as soon as practicable after, the
Effective Time. Each dissenting share shall be converted
into the right to receive payment from the Surviving
Corporation with respect thereto in accordance with the
provisions of the GBCC. The Conversion Ratio shall be
subject to equitable adjustment in the event of any stock
split, stock dividend, reverse stock split, or other change
in number of shares of FDC Common Stock or shares of MAAC
Common Stock outstanding. For all purposes, each share of
MAAC Common Stock is agreed to have a value of Twenty-Eight
Dollars ($28.00) per share.
(2) On and after the Effective Date,
the holders of FDC Common Stock shall cease to have any
rights as shareholders of FDC except for the right to
surrender their stock in exchange for payment of the merger
consideration.
(2) Each share of Common Stock of MAAC issued and
outstanding immediately prior to the Effective Time shall
remain issued and outstanding.
X. No Fractional Shares. No fractional shares
of MAAC Common Stock shall be issued pursuant to the Merger.
In lieu of the issuance of any such fractional share of MAAC
Common Stock, cash adjustments will be paid to holders in
respect of any fractional share of MAAC Common Stock that
would otherwise be issuable. The amount of such adjustment
shall be the product of such fraction of a share of MAAC
Common Stock multiplied by $28.00.
XI. Dissenting Shares. Notwithstanding anything
herein to the contrary, shares of FDC Common Stock that are
outstanding immediately prior to the Effective Date and that
are held by shareholders, if any, who are entitled to assert
a right to dissent from the merger and who demand and
validly perfect their rights to receive the "fair value" of
their shares with respect to the merger under the relevant
provisions of the GBCC (the "Dissenting Shares") shall be
entitled solely to the payment of the "fair value" of such
shares in accordance with the provisions of the GBCC; except
that (i) if such demand to receive "fair value" shall be
withdrawn upon the consent of the Surviving Corporation,
(ii) if this Agreement and Plan of Merger shall be
terminated, or the merger shall not be consummated, (iii) if
no demand or petition for the determination of "fair value"
by a court shall have been made or filed within the time
provided in the provisions of the GBCC or (iv) if a court of
competent jurisdiction shall determine that such holder of
Dissenting Shares is not entitled to the relief provided by
the provisions of the GBCC, then the right of such holder of
Dissenting Shares to be paid the "fair value" of his shares
of FDC Common Stock shall cease and, with respect to clauses
(i), (iii) and (iv) above, such Dissenting Shares shall
thereupon be deemed to have been converted into and to have
become exchangeable for, as of the Effective Date, the right
to receive the merger consideration with respect thereto,
without any interest thereon, and with respect to clause
(ii) above, the status of such shareholder shall be restored
retroactively without prejudice to any corporate proceeding
which may have been taken during the interim.
XII. Amendment or Termination. Notwithstanding
shareholder approval of this Agreement and Plan of Merger,
this Agreement and Plan of Merger may be amended or
terminated at any time on or before the Effective Date by
agreement of the Boards of Directors of the Constituent
Corporations, provided that no amendment may be made which
decreases the Conversion Ratio.
XIII. Counterparts. This Agreement and Plan of
Merger may be executed in counterparts each of which shall
be deemed an original and all of which together shall be
considered one and the same agreement. The parties agree
that a facsimile may be executed as an original.
IN WITNESS WHEREOF, the parties hereto, pursuant to the
approval and authority duly given by resolutions adopted by
their respective Boards of Directors and the FDC
shareholders, have duly executed this Agreement and Plan of
Merger as of the day and year first written above.
XXXXXXXX DEVELOPMENT COMPANY
By:
Title:
MID-AMERICA APARTMENT COMMUNITIES, INC.
By:
Title:
