Exhibit 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to that certain Agreement and Plan of Merger dated
November 12, 1996 (the "Merger Agreement") is made and entered into this 18th
day of December, 1996, by and among Union Property Investors, Inc., a Delaware
corporation ("UPI"), Kranzco Realty Trust, a Maryland real estate investment
trust ("Kranzco"), and KRT Union Corp., a Delaware corporation and a
wholly-owned subsidiary of Kranzco organized solely for the purpose of
consummating the transactions contemplated by the Merger Agreement.
WHEREAS, the Board of Directors of each of UPI and KRT Union Corp. and
the Board of Trustees of Kranzco have determined that it is in the best
interests of their respective companies and stockholders to modify and amend the
Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Section 1.03(a)(i) of the Merger Agreement is modified and amended in
its entirety to read as follows:
"(i) at the election of the holder thereof, 0.2980 of one of
either (A) Acquiror's 9.75% Series B-1 Cumulative Convertible
Preferred Shares, par value $.01 per share each with a $25.00 per share
liquidation preference (the "Acquiror Series B-1 Preferred Shares"),
the form of Articles Supplementary for which is attached as Exhibit A-1
hereto, or (B) Acquiror's 9.75% Series B-2 Cumulative Convertible
Preferred Shares, par value $.01 per share each with a $25.00 per share
liquidation preference (the "Acquiror Series B-2 Preferred Shares"),
the form of Articles Supplementary for which is attached as Exhibit A-2
hereto (the Acquiror Series B-1 Preferred Shares and the Acquiror
Series B-2 Preferred Shares shall each be sometimes referred to
hereinafter as the "Acquiror Series B Preferred Shares"), plus".
2. Section 2.01 of the Merger Agreement is modified and amended
in its entirety to read as follows:
"SECTION 2.01 Target Common Stock Election; Surrender
of Target Certificates.
(a) Prior to the Effective Time, Acquiror shall make available
to an exchange agent selected by Acquiror, which shall be Acquiror's
transfer agent, or such other party reasonably acceptable to Target
(the "Exchange Agent"), in trust for the benefit of the holders of
Target Common Stock and Target Preferred Stock, for exchange in
accordance with this Article II, the amount of cash payable in lieu of
fractional shares pursuant to Section 2.02 and the certificates
representing the shares of Acquiror Series B-1 Preferred Shares,
Acquiror Series B-2 Preferred Shares and Acquiror Series C Preferred
Shares to be issued pursuant to Section 1.03. Promptly after the
Effective Time, the Exchange Agent shall mail to each holder of record
of a certificate or certificates which immediately prior to the
Effective Time represented shares of Target Common Stock or Target
Preferred Stock (collectively, the "Target Certificates" and
individually, a "Target Certificate") a letter of transmittal (the
"Target Letter of Transmittal") which shall, (i) with respect to each
holder of a Target Certificate representing shares of Target Common
Stock, instruct such holder to elect to have such holder's shares of
Target Common Stock converted into either (x) Acquiror Series B-1
Preferred Shares and the cash to be received, if any, in lieu of the
issuance of fractional shares of Acquiror Series B-1 Preferred Shares,
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pursuant to Section 1.03(a), or (y) Acquiror Series B-2 Preferred
Shares and the cash to be received, if any, in lieu of the issuance of
fractional shares of Acquiror Series B-2 Preferred Shares, pursuant to
Section 1.03(a), and (ii) specify (A) the manner by which to effect the
surrender of such holder's Target Certificates in exchange for
certificates representing shares of Acquiror Series B-1 Preferred
Shares, Acquiror Series B-2 Preferred Shares or Acquiror Series C
Preferred Shares, and cash in lieu of fractional shares, after giving
effect to any required withholding taxes, and (B) that delivery shall
be effected, and risk of loss and title to Target Certificates shall
pass, only upon delivery of the Target Certificates to the Exchange
Agent.
(b) Upon surrender of a Target Certificate representing shares
of Target Common Stock to the Exchange Agent, together with the Target
Letter of Transmittal, duly executed, and in the form and having such
other provisions as Acquiror shall reasonably request, the holder of
such Target Certificate shall be entitled to receive in exchange
therefor a certificate or certificates of Acquiror representing the
number of shares of Acquiror Series B-1 Preferred Shares or Acquiror
Series B-2 Preferred Shares, and cash in lieu of fractional shares,
which such holder has the right to receive pursuant to Section 1.03,
subject to Section 2.06, and the Target Certificate so surrendered
shall forthwith be cancelled. If such holder fails to make a proper
election on the Target Letter of Transmittal with respect to whether to
receive Acquiror Series B-1 Preferred Shares or Acquiror Series B-2
Preferred Shares in the Merger, such holder will be deemed to have made
an election to receive Acquiror Series B-1 Preferred Shares in the
Merger in exchange for such holder's shares of UPI Common Stock.
(c) Upon surrender of a Target Certificate representing shares
of Target Preferred Stock to the Exchange Agent, together with the
Target Letter of Transmittal, duly executed, and such other documents
as Acquiror or the Exchange Agent shall reasonably request, the holder
of such Target Certificate shall be entitled to receive in exchange
therefor shares of Acquiror Series C Preferred Shares pursuant to the
terms of Section 1.03, and the Target Certificate so surrendered shall
forthwith be cancelled.
(d) Until surrendered as contemplated in this Article II, from
and after the Effective Time, each Target Certificate shall be deemed
to represent only the right to receive the above described
consideration for each share of Target Common Stock or Target Preferred
Stock formerly represented by such Target Certificate, and shall not
evidence any interest in Acquiror or Newco. If a certificate or
certificates representing shares of Acquiror Series B-1 Preferred
Shares, Acquiror Series B-2 Preferred Shares or Acquiror Series C
Preferred Shares is to be issued to and cash is to be paid in lieu of
fractional shares to a person other than the one in whose name the
Target Certificate surrendered in exchange therefor is registered, it
shall be a condition to such issuance or payment that such Target
Certificate be properly endorsed (or accompanied by an appropriate
instrument of transfer), with signatures guaranteed, if requested, and
accompanied by evidence that any applicable stock transfer taxes have
been paid or provided for."
3. Section 5.10 of the Merger Agreement is modified and amended to
delete the phrase "Acquiror Series B Preferred Shares" in the eleventh line
thereof and insert in its place the phrase "Acquiror Series B-1 Preferred
Shares".
4. Section 5.16 of the Merger Agreement is modified and amended to
delete the phrase "Acquiror Series B Preferred Shares" in the seventh, ninth,
eleventh, twelfth and thirteenth lines thereof and insert in its place the
phrase "Acquiror Series B-1 Preferred Shares".
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5. Section 5.17 of the Merger Agreement is modified and amended
in its entirety to read as follows:
"(a) Acquiror shall, on or prior to the Closing Date, file
with the State Department of Assessments and Taxation of Maryland the
Articles Supplementary for each of the Acquiror Series B-1 Preferred
Shares, the Acquiror Series B-2 Preferred Shares and the Acquiror
Series C Preferred Shares and shall promptly deliver to Target evidence
of such filings.
(b) When issued, the Acquiror Series B Preferred Shares, the
Acquiror Series C Preferred Shares, and the Acquiror Common Shares to
be issued upon conversion of the Acquiror Series B Shares, shall be
duly authorized, validly issued, fully paid and nonassessable except
that shareholders may be subject to further assessment with respect to
claims for tort, contract, taxes, statutory liability and otherwise in
some jurisdictions to the extent such claims are not satisfied by
Acquiror. The Acquiror Series B-1 Preferred Shares, Acquiror Series B-2
Preferred Shares, and Acquiror Series C Preferred Shares shall be as
set forth in the Articles Supplementary attached as Exhibit X-0,
Xxxxxxx X-0 and Exhibit B hereto, respectively, with the completion of
any blanks contained therein."
6. Exhibits A, B, C, E, F and G to the Merger Agreement are amended and
restated in their entirety in the forms attached hereto as Exhibits A-1, B, C,
E, F and G, respectively, and Exhibit A-2 attached hereto shall be Exhibit A-2
to the Merger Agreement.
Upon the execution hereof, each reference in the Merger Agreement to
"this Agreement", "hereby", "hereunder", "herein", "hereof" or word of like
import referring to the Merger Agreement shall mean and refer to the Merger
Agreement as amended by this Amendment No. 1 to the Merger Agreement. All other
provisions of the Merger Agreement shall remain in full force and effect except
and to the extent explicitly amended hereby. This Amendment No. 1 to the Merger
Agreement shall be governed and construed in accordance with the laws of the
State of New York without regard to any applicable principles of conflicts of
law.
This amendment may be executed in any number of counterparts, each of
which together shall constitute one and the same amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to the Merger Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
UNION PROPERTY INVESTORS, INC.
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
KRANZCO REALTY TRUST
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
KRT UNION CORP.
/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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