AGREEMENT AND PLAN OF MERGER
Exhibit 10.1
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of October 8, 2010, by and
among FOX STRATEGIC HOUSING INCOME PARTNERS, a California limited partnership (“Fox”), AIMCO FOX
MERGER SUB LLC, a California limited liability company (the “Aimco Subsidiary”), and AIMCO
PROPERTIES, L.P., a Delaware limited partnership (“Aimco OP”).
WHEREAS, Fox Partners VIII, the general partner of Fox (“Fox GP”), has determined that the
Merger (as defined below) of the Aimco Subsidiary with and into Fox, with Fox as the surviving
entity, is advisable and in the best interests of Fox and its partners;
WHEREAS, Aimco OP, the sole member of the Aimco Subsidiary, has determined that the Merger of
the Aimco Subsidiary with and into Fox, with Fox as the surviving entity, is advisable and in the
best interests of the Aimco Subsidiary and its member;
WHEREAS the Board of Directors of AIMCO-GP, Inc., the general partner of Aimco OP
(“AIMCO-GP”), has determined that the Merger of the Aimco Subsidiary with and into Fox, with Fox as
the surviving entity, is advisable and in the best interests of Aimco OP and its partners; and
WHEREAS, the parties desire to enter this Agreement to evidence the terms, provisions,
representations, warranties, covenants and conditions upon which the Merger will be consummated.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, and
for other good and valuable consideration, the adequacy, sufficiency, and receipt of which are
hereby acknowledged, Fox, the Aimco Subsidiary and Aimco OP hereby agree as follows:
SECTION 1. The Merger. Subject to the terms and conditions set forth herein, the Aimco
Subsidiary shall be merged with and into Fox (the “Merger”), and Fox shall be the surviving entity
of the Merger (the “Surviving Entity”). The Merger will have the effects specified in this
Agreement, section 15911.11 of the California Uniform Limited Partnership Act of 2008 (the
"CULPA”), and section 17550 of the Xxxxxxx-Xxxxxx Limited Liability Company Act, as amended (the
"BKLLCA”).
SECTION 2. General Partner. Fox GP will be the sole general partner of the Surviving Entity.
SECTION 3. Certificate. As soon as practicable after the approval of this Agreement by a
majority in interest of limited partnership interests of Fox, Fox shall cause to be filed a
certificate of merger with respect to the Merger (the “Certificate of Merger”) with the Office of
the Secretary of State of the State of California pursuant to section 15911.14 of the CULPA and
section 17552 of the BKLLCA. The Merger shall become effective at such time as the Certificate of
Merger has been accepted for record by the Secretary of State of the State of California (the
“Effective Time”).
SECTION 4. Limited Partnership Agreement. The agreement of limited partnership of Fox as in
effect immediately prior to the consummation of the Merger (the “Partnership Agreement”), shall be
the agreement of limited partnership of the Surviving Entity until thereafter amended in accordance
with the provisions thereof and applicable law. The general partner and each limited partner of
the Surviving Entity shall have the rights under, be bound by and be subject to the terms and
conditions of, the Partnership Agreement, as a general partner or limited partner, as applicable.
SECTION 5. Treatment of Interests in Fox.
(a) Limited Partners’ Interests.
(i) In connection with the Merger and in accordance with the procedures set forth in Section
5(a)(iii) hereto, each limited partnership unit of Fox outstanding immediately prior to
the Effective Time and held by limited partners of Fox, except limited partnership units held
by limited partners who have perfected their appraisal rights pursuant to Exhibit A hereto,
shall be converted into the right to receive, at the election of the limited partner, either (x)
$4.84 in cash (the “Cash Consideration”) or (y) a number of partnership common units of Aimco OP
calculated by dividing $4.84 by the average closing price of Apartment Investment and Management
Company common stock, as reported on the NYSE, over the ten consecutive trading days ending on the
second trading day immediately prior to the Effective Time (the “OP Unit Consideration”, and,
together with the Cash Consideration, the “Merger Consideration”).
(ii) Notwithstanding Section 5(a)(i), if Aimco OP determines that the law of the state or
other jurisdiction in which a limited partner resides would prohibit the issuance of partnership
common units of Aimco OP in that state or jurisdiction (or that the registration in that state or
other jurisdiction would be prohibitively costly), then such limited partner will only be entitled
to receive the Cash Consideration for each limited partnership unit.
(iii) Aimco OP shall prepare a form of election (the “Election Form”) describing the Merger
and pursuant to which each limited partner of Fox will have the right to elect to receive either
the Cash Consideration or the OP Unit Consideration (subject to Section 5(a)(ii)). Aimco OP shall
mail or cause to be mailed an Election Form to each limited partner, together with any other
materials that Aimco OP determines to be necessary or prudent, no later than ten (10) days after
the Effective Time. An election to receive the Cash Consideration or the OP Unit Consideration
shall be effective only if a properly executed Election Form is received by Aimco OP or its
designees prior to 5:00 p.m., Eastern Time on the day that is thirty (30) days after the mailing of
such Election Form by Aimco OP. If a limited partner fails to return a duly completed Election
Form within the time period specified in the Election Form, such holder shall be deemed to have
elected to receive the Cash Consideration. In addition, each limited partner that resides in a
state or other jurisdiction that Aimco OP determines would prohibit the issuance of partnership
common units of Aimco OP (or in which registration of in would be prohibitively costly) will be
deemed to have elected the Cash Consideration. Fox, the Aimco Subsidiary and Aimco OP agree that
limited partners shall have the right to revoke any election made in connection with the Merger at
any time prior to the expiration of the time period stated in the Election Form. Aimco OP and Fox
GP, by mutual agreement, shall have the right to make rules, not inconsistent with the terms of
this Agreement, governing the validity of Election Forms and the issuance and delivery of the
Merger Consideration, as applicable.
(b) General Partner’s Interests. Each general partnership unit of Fox outstanding
immediately prior to consummation of the Merger shall remain outstanding and unchanged, with all of
the rights set forth in the Partnership Agreement.
SECTION 6. Treatment of Interests in Aimco Subsidiary. The entire membership interest in the
Aimco Subsidiary immediately prior to the Effective Time shall be converted into 1,000 limited
partnership units of the Surviving Entity.
SECTION 7. Appraisal Rights. In connection with the Merger, the holders of limited
partnership units of Fox immediately prior to the Merger shall have the appraisal rights set forth
in Exhibit A hereto.
SECTION 8. Covenants. Aimco OP agrees to pay for, or reimburse Fox for, all expenses incurred
by Fox in connection with the Merger. Aimco OP agrees to pay cash or issue and deliver common
units of Aimco OP to the former holders of Fox limited partnership units, in accordance with
section 5(a) of this Agreement.
SECTION 9. Conditions to the Merger.
(a) The Merger shall not occur unless and until the Merger has been approved or
consented to by a majority in interest of limited partners of Fox.
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(b) Notwithstanding any provisions of this Agreement to the contrary, none of the
parties hereto shall be required to consummate the transactions contemplated hereby if any
third-party consent, authorization or approval that any of the parties hereto deem
necessary or desirable in connection with this Agreement, or the consummation of the
transactions contemplated hereby, has not been obtained or received.
SECTION 10. Tax Treatment. The parties hereto intend and agree that, for Federal income tax
purposes, (i) any payment of cash for limited partnership units of Fox shall be treated as a sale
of such limited partnership units by such holder and a purchase of such limited partnership units
by Aimco OP for the cash so paid under the terms of this Agreement in accordance with the
guidelines set forth in Treas. Reg. Sections 1.708-1(c)(3) and 1.708-1(c)(4), and (ii) each such
holder of limited partnership units who accepts cash explicitly agrees and consents to such
treatment. Furthermore, the parties hereto intend and agree that, for Federal income tax purposes,
(i) any exchange of limited partnership units of Fox for partnership common units of Aimco OP under
the terms of this Agreement shall be treated in accordance with Sections 721 and 731 of the
Internal Revenue Code of 1986, as amended, and (ii) each such holder of limited partnership units
of Fox who accepts partnership common units of Aimco OP explicitly agrees and consents to such
treatment. Any cash and/or partnership common units of Aimco OP to which a holder of limited
partnership units of Fox is entitled pursuant to this Agreement shall be paid only after the
receipt of a consent from such holder that, for Federal income tax purposes, the receipt of cash
and/or partnership common units of Aimco OP shall be treated as described in this Section 10.
SECTION 11. Further Assurances. From time to time, as and when required by the Surviving
Entity or by its successors and assigns, there shall be executed and delivered on behalf of the
Aimco Subsidiary such deeds and other instruments, and there shall be taken or caused to be taken
by the Aimco Subsidiary all such further actions, as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Entity the title to and
possession of all property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of the Aimco Subsidiary, and otherwise to carry out the purposes of this Agreement,
and the officers and directors of Fox GP are fully authorized in the name and on behalf of Aimco
Subsidiary or otherwise to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
SECTION 12. Amendment. Subject to applicable law, this Agreement may be amended, modified or
supplemented by written agreement of the parties hereto at any time prior to the consummation of
the Merger with respect to any of the terms contained herein.
SECTION 13. Abandonment. At any time prior to consummation of the Merger, this Agreement may
be terminated and the Merger may be abandoned without liability to any party hereto by any of the
Aimco Subsidiary, Aimco OP or Fox, in each case, acting in its sole discretion and for any reason
or for no reason, notwithstanding approval of this Agreement by any of the members of the Aimco
Subsidiary, the partners of Fox or the general partner of Aimco OP.
SECTION 14. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without reference to the conflict of law provisions
thereof.
SECTION 15. No Third-Party Beneficiaries. No provision of this Agreement is intended to
confer upon any person, entity, or organization other than the parties hereto any rights or
remedies hereunder, other than the appraisal rights given to holders of limited partnership units
of Fox pursuant to Section 7.
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IN WITNESS WHEREOF, Fox, the Aimco Subsidiary and Aimco OP have caused this Agreement to be
signed by their respective duly authorized officers as of the date first above written.
| FOX STRATEGIC HOUSING INCOME PARTNERS | ||||||
| By: | Fox Partners VIII, | |||||
| its General Partner | ||||||
| By: | /s/ Xxxxx XxXxxxxxxx | |||||
| Name: | Xxxxx XxXxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| AIMCO FOX MERGER SUB LLC | ||||||
| By: | Aimco Properties, L.P., | |||||
| its sole Member | ||||||
| By: | AIMCO-GP, Inc. | |||||
| its General Partner | ||||||
| By: | /s/ Xxxxx XxXxxxxxxx | |||||
| Name: | Xxxxx XxXxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| AIMCO PROPERTIES, L.P. | ||||||
| By: | AIMCO-GP, Inc., | |||||
| its General Partner | ||||||
| By: | /s/ Xxxxx XxXxxxxxxx | |||||
| Name: | Xxxxx XxXxxxxxxx | |||||
| Title: | Senior Vice President | |||||
[Signature Page — Merger Agreement]
EXHIBIT A
Appraisal Rights of Limited Partners
Capitalized terms used but not defined herein shall have the respective meanings ascribed
thereto in the Agreement and Plan of Merger, dated as of October 8, 2010 (the “Merger Agreement”),
by and among Fox Strategic Housing Income Partners, a California limited partnership (“Fox”), AIMCO
Fox Merger Sub LLC, a California limited liability company (the “Aimco Subsidiary”), and AIMCO
Properties, L.P., a Delaware limited partnership (“Aimco OP”). In connection with the Merger,
limited partners of Fox shall have the following appraisal rights:
(a) Any limited partner who holds limited partnership units on the effective date of the
Merger who has not consented to the merger (the “Nonconsenting Limited Partners”) and who has
otherwise complied with paragraph (b) hereof shall be entitled to an appraisal by arbitration of
the fair value of the Nonconsenting Limited Partner’s limited partnership units. This arbitration
shall be conducted in Denver, Colorado, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association by a panel of three arbitrators selected by Aimco OP. Any
arbitration award shall be appealable in the Federal District Court located in Denver, Colorado.
(b) Within 10 days after the effective date of the Merger, Aimco OP shall notify each of the
Nonconsenting Limited Partners of the consummation of the Merger, the effective date of the Merger
and that appraisal rights are available for any or all limited partnership units held by
Nonconsenting Limited Partners, and shall include in such notice a copy of this Annex. Such notice
shall include an Election Form pursuant to which Nonconsenting Limited Partners may elect an
appraisal by arbitration of the fair value of their limited partnership units pursuant to paragraph
(a) hereof. Any limited partner who holds limited partnership units on the effective date of the
Merger and who has not consented to the Merger shall be entitled to receive such notice and may,
within 30 days after the date of mailing of such notice (such 30th day being the “Election
Deadline”), demand from Aimco OP the appraisal of his or her limited partnership units by making
the appropriate election in the Election Form in accordance with the instructions thereto. Each
completed Election Form must be delivered to the address, and within the time period, specified in
the instructions to the Election Form. If a Nonconsenting Limited Partner fails to properly
complete an Election Form or return it to the correct address within the specified time period,
such Nonconsenting Limited Partner shall be deemed to have elected not to seek an appraisal of his
or her limited partnership units, and will be deemed to have elected the Cash Consideration.
(c) At any time prior to the Election Deadline, any Nonconsenting Limited Partner who has made
a demand for appraisal of his or her limited partnership units shall have the right to withdraw his
or her demand for appraisal and to accept the Cash Consideration payable pursuant to the Merger
Agreement. Nonconsenting Limited Partners who wish to withdraw their demands must do so in writing
delivered to Aimco Properties, L.P., c/o Eagle Rock Proxy Advisors, LLC, by mail at 00 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx, 00000, or by fax at (000) 000-0000. At any time prior to 20 days
after the Election Deadline, any Nonconsenting Limited Partner who has complied with the
requirements of subsections (a) and (b) hereof, upon written request, shall be entitled to receive
from Aimco OP a statement setting forth the aggregate number of limited partnership units with
respect to which Nonconsenting Limited Partners have made demands for appraisal and the aggregate
number of holders of such limited partnership units. Such written statement shall be mailed to the
Nonconsenting Limited Partner within 10 days after such Nonconsenting Limited Partner’s written
request for such a statement is received by Aimco OP or within 20 days after the Election Deadline,
whichever is later.
(d) Upon the submission of any such demand by a Nonconsenting Limited Partner, Aimco OP shall,
within 40 days after the Election Deadline, submit to the arbitration panel a duly verified list
containing the names and addresses of all Nonconsenting Limited Partners who have demanded payment
for their limited partnership units and with whom agreements as to the value of their limited
partnership units have not been reached with Aimco OP. The arbitration panel shall give notice of
the time and place fixed for the hearing of such demand by registered or certified mail to Aimco OP
and to the Nonconsenting
Limited Partners shown on the list at the addresses therein stated. The forms of the notices
shall be approved by the panel, and the costs thereof shall be borne by Aimco OP.
(e) At the hearing on such demand, the panel shall determine the Nonconsenting Limited
Partners who have become entitled to appraisal rights hereunder.
(f) After determining the Nonconsenting Limited Partners entitled to an appraisal, the panel
shall appraise the limited partnership units, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the Merger, together with interest, if
any, to be paid upon the amount determined to be the fair value. In determining such fair value,
the panel shall take into account all relevant factors. Unless the panel in its discretion
determines otherwise for good cause shown, interest from the effective date of the Merger through
the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the
Federal Reserve discount rate (including any surcharge), as established from time to time during
the period between the effective date of the Merger and the date of payment of the judgment. Upon
application by Aimco OP or by any Nonconsenting Limited Partner entitled to participate in the
appraisal proceeding, the panel may, in its discretion, proceed with the appraisal prior to the
final determination of the Nonconsenting Limited Partners entitled to an appraisal. Any
Nonconsenting Limited Partner whose name appears on the list submitted by Aimco OP pursuant to
paragraph (d) hereof may participate fully in all proceedings until it is finally determined that
such Nonconsenting Limited Partner is not entitled to appraisal rights hereunder.
(g) The panel shall direct the payment of the fair value of the limited partnership units,
together with interest, if any, by Aimco OP to the Nonconsenting Limited Partners entitled thereto.
Payment shall be so made to each such Nonconsenting Limited Partner upon the receipt by Aimco OP of
the written consent from such Nonconsenting Limited Partner that, for federal income tax purposes,
the issuance of cash for the limited partnership units shall be treated as a sale of the limited
partnership units by the owner and a purchase of such limited partnership units by Aimco OP for the
cash consideration so paid under the terms of the Merger Agreement in accordance with the
guidelines set forth in Treas. Reg. Sections 1.708-1(c)(3) and 1.708-1(c)(4).
(h) The costs of the proceeding may be determined by the panel and taxed upon the parties as
the panel deems equitable in the circumstances. Upon application of a Nonconsenting Limited
Partner, the panel may order all or a portion of the expenses incurred by any Nonconsenting Limited
Partner in connection with the appraisal proceeding, including, without limitation, reasonable
attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of
all the interests entitled to an appraisal.
(i) From and after the effective date of the Merger, no Nonconsenting Limited Partner who has
demanded appraisal rights as provided in paragraph (b) hereof shall be entitled to vote such
limited partnership units for any purpose or to receive payment of distributions on such interests
(except distributions payable as of a record date prior to the effective date of the Merger);
provided, however, that if such Nonconsenting Limited Partner shall deliver to Aimco Properties,
L.P., c/o Eagle Rock Proxy Advisors, LLC, by mail at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx,
00000, or by fax at (000) 000-0000, a written withdrawal of such Nonconsenting Limited Partner’s
demand for an appraisal and an acceptance of the Cash Consideration payable pursuant to the Merger
Agreement, either as provided in paragraph (c) hereof or thereafter with the written approval of
Aimco OP, then the right of such Nonconsenting Limited Partner to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding before the panel shall be dismissed as to
any Nonconsenting Limited Partner without the approval of the panel, and such approval may be
conditioned upon such terms as the panel deems just.
