AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of January
31, 1998, is by and among Corporate Office Properties Trust, Inc., a Minnesota
corporation (the "Company"), COPT, Inc., a Maryland corporation (the "Maryland
Company") and Corporate Office Properties Trust, a Maryland real estate
investment trust (the "Trust").
RECITALS
WHEREAS, the Boards of Directors of the Company and the Maryland Company
and the Board of Trustees of the Trust each have determined that it is in the
best interests of their respective shareholders to effect the Mergers (as
hereinafter defined) upon the terms and subject to the conditions set forth
herein; and
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein 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 COMPANY 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 Maryland Company and the separate corporate
existence of the Company shall thereupon cease (the "Company Merger"). The
Maryland 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
Maryland Company with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Company Merger.
The Company Merger shall have the effects specified in the Minnesota
Business Corporation Act (the "MBCA") and the Maryland General Corporation Law
(the "MGCL").
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1.2. THE TRUST MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.4), the Surviving
Corporation shall be merged with and into the Trust and the separate corporate
existence of the Surviving Corporation shall thereupon cease (the "Trust Merger"
and, together with the Company Merger, the "Mergers"). The parties intend that
the Mergers qualify as a reorganization under Section 368(a)(1) of the Internal
Revenue Code of 1986, as amended. The Trust shall be the surviving entity in the
Trust Merger (sometimes hereinafter referred to as the "Surviving Entity") and
shall continue to be governed by the laws of the State of Maryland and the
separate existence of the Trust with all its rights, privileges, immunities,
powers and franchises shall continue unaffected by the Merger.
The Trust Merger shall have the effects specified in the MGCL.
1.3. CLOSING. The Closing of the Mergers (the "Closing") shall take place
(i) at the offices of the Trust, Xxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 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 6.1
hereof shall be fulfilled or (ii) at such other place and time and/or on such
other date as the Company, the Maryland Company and the Trust may agree.
1.4. EFFECTIVE TIME. Following the fulfillment or waiver of the conditions
set forth in Section 6.1 hereof, and provided that this Agreement has not been
terminated or abandoned pursuant to Article VII hereof, the Company and the
Maryland Company will, at such time as they deem advisable, cause Articles of
Merger (the "Minnesota Articles of Merger") to be signed and filed with the
Secretary of State of the State of Minnesota as provided in Section 302A.641 of
the MBCA and Articles of Merger (the "Maryland Articles of Merger") to be filed
with the State Department of Assessments and Taxation of Maryland (the "SDAT")
as provided in Section 3-105 of the MGCL. Following the fulfillment or waiver of
the conditions set forth in Section 6.1 hereof, provided that this Agreement
shall not have been terminated or abandoned pursuant to Article VII hereof, the
Maryland Company and the Trust will, at such time as they deem advisable, cause
Articles of Merger (the "Trust Articles of Merger") to be filed with the SDAT as
provided in Section 3-105 of the MGCL. The Mergers shall become effective upon
the latter of (i) the filing the Articles of Merger with the Secretary of State
of the State of Minnesota and (ii) the acceptance for record of the Maryland
Articles of Merger and
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the Trust Articles of Merger by the SDAT (the "Effective Time"). The parties
hereto intend the Mergers to become effective simultaneously.
ARTICLE II
DECLARATION OF TRUST AND BYLAWS
OF THE SURVIVING CORPORATION
AND THE SURVIVING ENTITY
2.1. SURVIVING CORPORATION. The Certificate of Incorporation and Bylaws of
the Maryland Company in effect at the Effective Time shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation, until duly amended in
accordance with the terms thereof and the MGCL.
2.2. SURVIVING ENTITY. The Declaration of Trust and Bylaws of the Trust in
effect at the Effective Time shall be the Declaration of Trust and Bylaws of the
Surviving Entity, until duly amended in accordance with the terms thereof and
the MGCL.
ARTICLE III
`
TRUSTEES AND OFFICERS
OF THE SURVIVING CORPORATION AND
THE SURVIVING ENTITY
3.1. DIRECTORS. The directors of the Maryland Company at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation until their successors have been duly elected or until their earlier
death, resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and Bylaws.
3.2. TRUSTEES. The trustees of the Trust at the Effective Time shall, from
and after the Effective Time, be the trustees of the Surviving Entity until
their successors have been duly elected or until their earlier death,
resignation or removal in accordance with the Surviving Entity's Declaration of
Trust and Bylaws.
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3.3. OFFICERS. The officers of the Maryland Company at the Effective Time
shall, from and after the Effective Time, be the officers of the Surviving
Corporation until their successors have been duly appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Surviving Corporation's Certificate of Incorporation and Bylaws. The officers of
the Trust at the Effective Time shall, from and after the Effective Time, be the
officers of the Surviving Entity until their successors have been duly appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Surviving Entity's Declaration of Trust and Bylaws.
ARTICLE IV
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
4.1. EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue of the
Mergers and without any action on the part of the holder of any capital stock of
the Company:
(a) Each share of the common stock, par value $0.01 per share (the "Company
Stock"), of the Company issued and outstanding immediately prior to the
Effective Time shall be converted into one validly issued, fully paid and
nonassessable common share of beneficial interest, par value $0.01 per share
(the "Common Shares") of the Trust. Each certificate (each, a "Certificate")
representing any such shares of Common Stock shall thereafter represent the
right to receive Common Shares. At the Effective Time, all shares of Common
Stock shall no longer be outstanding and shall be cancelled and retired and
shall cease to exist.
(b) Each share of Common Stock issued and held in the Company's treasury at
the Effective Time, shall be virtue of the Mergers and without any action on the
part of the holder thereof, cease to be outstanding, shall be cancelled and
retired without payment of any consideration therefor and shall cease to exist.
(c) At the Effective Time, each share of common stock, par value $0.01 per
share, of the Maryland 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 Maryland Company or the holder of such shares, be
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cancelled and retired without payment of any consideration therefor.
(d) At the Effective Time, each Common Share issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Mergers and
without any action on the part of the Trust or the holder of such shares, be
cancelled and retired without payment of any consideration therefor.
(e) Each option to purchase or otherwise acquire shares of Common Stock
pursuant to the stock option plan of the Company granted and 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, be converted into
and become a right to purchase or otherwise acquire the same number of Common
Shares at the same price per share and upon the same terms and subject to the
same conditions as applicable to such options immediately prior to the Effective
Time.
4.2. CONVERSION OF OUTSTANDING STOCK OF THE COMPANY. From and after the
Effective Time, each issued and outstanding share of Common Stock and all rights
in respect thereof shall be converted into one fully paid and nonassessable
Common Share, and each Certificate nominally representing shares of Common Stock
shall for all purposes be deemed to evidence the ownership of an equal number of
Common Shares. The holders of Certificates shall not be required immediately to
surrender the same in exchange for certificates for Common Shares, but, as
Certificates nominally representing shares of Common Stock are surrendered for
transfer, the Trust will cause to be issued certificates representing Common
Shares, and, at any time upon surrender by any holder of Certificates nominally
representing shares of Common Stock, the Trust will cause to be issued therefor
certificates for an equal number of Common Shares.
ARTICLE V
COVENANTS
5.1. NASDAQ LISTING. The Trust shall use its reasonable best efforts to
cause the Common Shares to be issued in the Mergers to be approved for trading
on the Nasdaq SmallCap Market tier of The Nasdaq Stock Market ("NASDAQ"),
subject to official notice of issuance, prior to the Closing Date.
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5.2. INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. From and after
the Effective Time, the Surviving Entity agrees that it 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 director or officer of the
Company or the Maryland Company or (ii) any individual who, while a director 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 permitted by law.
ARTICLE VI
CONDITIONS
6.1. CONDITION TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of the Company, the Maryland Company and the Trust 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 Trust, 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 of Common Stock, in accordance with applicable law and
the Amended and Restated Articles of Incorporation and Bylaws of the Company,
(ii) the Company, as sole shareholder of the Maryland Company, and (iii) the
Maryland Company, as sole shareholder of the Trust.
(c) Holders of not more than 5.0% of the Common Stock issued and
outstanding on the record date set for the special meeting of the Company's
shareholders called to approve the Mergers shall have exercised their rights
under Section 302A.471 of the MBCA.
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(d) The Common Shares issuable to the Company's shareholders pursuant to
this Agreement shall have been authorized for trading on the NASDAQ or the
National Market tier of the Nasdaq Stock Market, subject to official notice of
issuance.
(e) 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.
(f) The obligations to consummate the Mergers contemplated hereby shall not
have been terminated pursuant to Article VII hereof.
(g) All consents and approvals, if any, necessary for the transactions
contemplated hereby shall have been obtained and be in full force and effect.
ARTICLE VII
TERMINATION
7.1. 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 Common Stock, by the mutual consent of the
Boards of Directors of the Company and the Maryland Company and the Board of
Trustees of the Trust.
7.2. EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination of
this Agreement and abandonment of the Merger pursuant to this Article VII, 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 VIII
MISCELLANEOUS AND GENERAL
8.1. MODIFICATION OR AMENDMENT. Subject to the applicable provisions of the
MBCA 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
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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.
8.2. 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.
8.3. 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.
8.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the States of Minnesota and Maryland, in the case of
the Company Merger, and in accordance with the laws of the State of Maryland, in
the case of the Trust Merger.
8.5. NO THIRD PARTY BENEFICIARIES. Except as provided in Section 5.2, 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.
8.6. 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.
8.7. SERVICE OF PROCESS. (a) The Trust may be served with process in the
State of Minnesota in a proceeding for the enforcement of an obligation of the
Company, the Maryland Company or the Trust, and in a proceeding for the
enforcement of the rights of a dissenting shareholder of the Company against the
Maryland Company or the Trust. The Trust hereby irrevocably appoints the
Secretary of State of the State of Minnesota as its agent to accept service of
process in any such proceeding. The address to which a copy of such process
shall be mailed by the Secretary of State to the Trust is Xxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxx X. Xxxxxx, III.
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(b) The Trust may be served with process in the State of Maryland in any
proceeding for the enforcement of any obligation of the Company or the Maryland
Company, as well as for enforcement of any obligations of the Trust arising from
the Mergers, and it does hereby irrevocably appoint the Secretary of State of
the State of Maryland as its agent to accept service of process in any such suit
or other proceedings. The address to which a copy of such process shall be
mailed by the Secretary of State to the Trust is Xxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxx X. Xxxxxx, III.
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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.
CORPORATE OFFICE PROPERTIES
TRUST, INC.
By: /s/ Xxxx X. Xxxxxx, III
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Name: Xxxx X. Xxxxxx, III
Title: President and Chief Executive Officer
COPT, INC.
By: /s/ Xxxx X. Xxxxxx, III
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Name: Xxxx X. Xxxxxx, III
Title: President
CORPORATE OFFICE PROPERTIES
TRUST
By: /s/ Xxxx X. Xxxxxx, III
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Name: Xxxx X. Xxxxxx, III
Title: President and Chief Executive Officer
