AGREEMENT AND PLAN OF MERGER SUMMIT HOTEL PROPERTIES, LLC SUMMIT HOTEL OP, LP
Annex B
AGREEMENT
AND PLAN OF MERGER
SUMMIT
HOTEL OP, LP
AGREEMENT AND PLAN OF MERGER (this
“Agreement”), dated as of August 5,
2010 by and between Summit Hotel Properties, LLC, a South Dakota
limited liability company (the “LLC”),
and Summit Hotel OP, LP, a Delaware limited partnership (the
“OP”).
ARTICLE 1
1.1. The Merger. Subject to the terms and
conditions of this Agreement, and in accordance with the
provisions of the South Dakota Limited Liability Company Act
(the “SDLLCA”) and the Delaware Revised
Uniform Limited Partnership Act (the
“DRULPA”), the LLC shall be merged with
and into the OP and the separate existence of the LLC shall
thereupon cease (the ‘Merger”). The OP
shall be the surviving entity in the Merger (sometimes
hereinafter referred to as the “Surviving
Entity”) and shall continue to be governed by the
laws of the State of Delaware, and the separate existence of the
Surviving Entity as a Delaware limited partnership, with all its
rights, privileges, immunities, powers and franchises, shall
continue unaffected by the Merger. The Merger shall have the
effects specified in the SDLLCA and the DRULPA.
1.3. Effective Time. If all the conditions to
the Merger set forth in Article 4 have been satisfied or
waived in accordance herewith and this Agreement has not been
terminated as provided in Article 5, upon the Closing, the
parties hereto will cause (i) a certificate of merger
substantially in the form attached hereto as
Exhibit A (the “LLC Certificate of
Merger”) to be executed and filed with the Office
of the Secretary of the State of South Dakota, as provided in
the SDLLCA and (ii) a certificate of merger substantially
in the form attached hereto as Exhibit B (the
“OP Certificate of Merger,” and together
with the LLC Certificate of Merger, the “Certificates
of Merger”) to be executed and filed with the
Office of the Secretary of the State of Delaware, as provided in
the DRULPA. The Merger will become effective at the time and on
the date
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specified in the Certificates of Merger, or, absent any such
indication, upon acceptance of the filings thereof by the States
(the “Effective Time”).
(a) At the Effective Time, by virtue of the Merger, and
without any further action on the part of any member of the LLC
(each, a “Member” and collectively, the
“Members”):
(i) all of the Membership Interests will be converted into
a total of 9,993,992 units of limited partnership interest
in the OP (“OP Units,” and
such aggregate number of OP Units, ‘Aggregate
Merger Consideration”). The Aggregate Merger
Consideration will be allocated among the Class A,
Class A-1,
Class B and Class C Membership Interests as set forth
on Exhibit C hereto.
(ii) Members holding Class A,
Class A-1,
Class B and Class C Membership Interests will be
entitled to receive a number of OP Units equal to the
product of (i) the aggregate number of OP Units
allocable to the applicable class of Membership Interests as set
forth on Exhibit C multiplied by
(ii) the percentage represented by (A) the
Member’s adjusted capital contribution to the LLC
represented by interests of the class, as defined in the Third
Amended and Restated Operating Agreement for the LLC (the
“Operating Agreement”) and as reflected
in the books and records of the LLC, divided by (B) the
aggregate adjusted capital contributions of all Members holding
Membership Interests of the class represented by interests of
the class, in each case, determined as of the close of the
business day immediately prior to the Effective Time. Examples
are described on Exhibit C attached hereto.
(iii) No fractional OP Units will be issued pursuant
hereto. Any fractional OP Unit will be rounded up or down
to the nearest whole OP unit.
(b) The rights of holders of the OP Units, as limited
partners of the OP, as of the Closing, including rights with
respect to redemption of OP Units, will be as set forth in
the OP Agreement.
(c) The name of each Member, and the number of
OP Units issued to such Member, will be recorded in the
books and records of the OP.
(d) Each Membership Interest will no longer be outstanding
and will be canceled and retired and will cease to exist.
(a) The Aggregate Merger Consideration will be deemed to
have been issued in full satisfaction of all rights pertaining
to the Membership Interests.
(b) At and after the Effective Time, there will be no
transfers on the books and records of the LLC of Membership
Interests which were outstanding immediately prior to the
Effective Time.
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ARTICLE 2
B-3
B-4
writ, injunction or decree of any court, government,
governmental entity or authority or arbitration against or
affecting the OP, which in any such case would impair the
OP’s ability to enter into and perform all of its
obligations under this Agreement.
ARTICLE 3
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ARTICLE 4
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ARTICLE 5
ARTICLE 6
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6.3. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware.
[Signature page follows.]
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SUMMIT HOTEL OP, LP
By: |
Summit Hotel Properties, Inc., a Maryland corporation, its General Partner |
By: |
/s/ Xxxxxx
X. Xxxxxx
|
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxx
X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
[Signature page follows.]
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EXHIBIT A
Articles of Merger
Articles of Merger
Pursuant to the provisions of SDCL
47-34A-905,
the following Articles of Merger are executed for purposes of
merging Summit Hotel Properties, LLC, a South Dakota limited
liability company (“SHP LLC”), with and
into Summit Hotel OP, LP, a Delaware limited partnership (the
“Surviving Entity”). SHP LLC and the
Surviving Entity are sometimes referred to herein as the
“Constituent Parties”)
FIRST: The name and jurisdiction of formation
or organization of the Constituent Parties are as follows:
(a) Summit Hotel Properties, LLC, a South Dakota limited
liability company and (b) Summit Hotel OP, LP, a Delaware
limited partnership.
SECOND: Summit Hotel Properties, LLC filed its
Articles of Organization with the South Dakota Secretary of
State’s office on January 12, 2004.
THIRD: An Agreement and Plan of Merger has
been duly approved by SHP LLC in accordance with the provisions
of the South Dakota Limited Liability Company Act, SDCL
47-34A (the
“Act”) and by the Surviving Entity in
accordance with the Delaware Revised Uniform Limited Partnership
Act.
FOURTH: The Surviving Entity’s name is
Summit Hotel OP, LP, a Delaware limited partnership, and its
principal place of business is 0000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 0, Xxxxx Xxxxx, XX 00000.
FIFTH: The effective date of the merger shall
be the date of filing of these Articles of Merger with the
Secretary of State of South Dakota.
SIXTH: The Surviving Entity filed its
Certificate of Limited Partnership with the Delaware Secretary
of State’s office on June 30, 2010, and it is
submitting contemporaneously herewith an application for
authority to operate as a foreign limited partnership.
SEVENTH: In accordance with SDCL
47-34A-905(a)(8),
the Surviving Entity hereby agrees that it may be served with
process in this state and is subject to liability in any action
or proceeding for the enforcement of any liability in any action
or proceeding for the enforcement of any liability or obligation
of SHP LLC, which was previously subject to suit in this state
and which is a party to the merger, and for the enforcement, as
provided in the Act, of the right of member of SHP LLC to
receive payment for his interest against the Surviving Entity in
accordance with the provisions of the Act.
EIGHTH: In accordance with SDCL
47-34A-905(c),
the Agreement and Plan of Merger shall be provided, on request
and without cost, to any member of SHP LLC or any person holding
an interest in the Surviving Entity.
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IN WITNESS WHEREOF, the Constituent Parties have caused
these Articles of Merger to be signed by their respective
authorized officers on
the
day
of ,
2010.
By: |
|
Xxxxx Xxxxxxxxxxx
Chief Executive Officer
Summit Hotel OP,
LP
By: | Summit Hotel Properties, Inc. |
General Partner
By: |
|
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
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EXHIBIT B
OP Certificate of Merger
OP Certificate of Merger
Pursuant to
Section 17-211
of the Delaware Revised Uniform Limited Partnership Act, the
undersigned limited partnership executed the following
Certificate of Merger:
FIRST: The name and state of formation of each
of the constituent entities of the merger is as follows:
Summit Hotel Properties, LLC, a South Dakota limited liability
company; and Summit Hotel OP, LP, a Delaware limited
partnership.
SECOND: The Agreement and Plan of Merger,
dated August 5, 2010, by and among Summit Hotel Properties,
LLC, a South Dakota limited liability company and Summit Hotel
OP, LP, a Delaware limited partnership, has been approved,
adopted and executed by each of the constituent entities in
accordance with
Section 17-211
of the Delaware Revised Uniform Limited Partnership Act.
THIRD: The name of the surviving entity of the
merger (the “Surviving Entity”) is Summit Hotel OP, LP.
FOURTH: The merger is to become effective
immediately upon filing this Certificate of Merger.
FIFTH: A copy of the executed Agreement and
Plan of Merger is on file at 0000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 0, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000, the place of
business of the Surviving Entity.
SIXTH: A copy of the executed Agreement and
Plan of Merger will be furnished by the Surviving Entity, upon
request and without cost, to any member or partner of either
constituent entity.
[Signature
page follows.]
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SUMMIT HOTEL OP, LP
By: Summit Hotel Properties, Inc.,
a Maryland corporation, its General Partner
By: |
|
Name:
Title:
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EXHIBIT C
Aggregate Merger Consideration
Aggregate Merger Consideration
Class A
Relative Percentage of Total |
||||||||||||
Adjusted Capital |
||||||||||||
Adjusted Capital |
Contributions to the LLC |
|||||||||||
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
Interests of the Class | the Class | Received in the Merger | ||||||||||
Subtotal:
|
$ | 119,138,717 | 100 | % | 6,283,197 | |||||||
Example:
|
$ | 100,000 | 0.0008394 | % | 5,274 | |||||||
Class A-1
Relative Percentage of Total |
||||||||||||
Adjusted Capital |
Adjusted Capital |
|||||||||||
Contribution Represented by |
Contributions to the LLC |
|||||||||||
Interests of the |
Represented by Interests of |
Number of OP Units to be |
||||||||||
Class | the Class | Received in the Merger | ||||||||||
Subtotal:
|
$ | 44,237,893 | 100 | % | 2,433,040 | |||||||
Example:
|
$ | 100,000 | 0.00226 | % | 5,500 | |||||||
Class B
Relative Percentage of Total |
||||||||||||
Adjusted Capital |
||||||||||||
Adjusted Capital |
Contributions to the LLC |
|||||||||||
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
Interests of the Class | the Class | Received in the Merger | ||||||||||
Subtotal:
|
$ | 6,687,944 | 100 | % | 352,712 | |||||||
Example:
|
$ | 100,000 | 0.01495 | % | 5,274 | |||||||
Class C
Relative Percentage of Total |
||||||||||||
Adjusted Capital |
||||||||||||
Adjusted Capital |
Contributions to the LLC |
|||||||||||
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
Interests of the Class | the Class | Received in the Merger | ||||||||||
Subtotal:
|
$ | 17,540,183 | 100 | % | 925,043 | |||||||
Total:
|
$ | 187,604,737 | 100 | % | 9,993,992 | |||||||
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EXHIBIT D
Form of Amended and Restated OP Agreement
(included as Annex C to proxy statement/prospectus)
Form of Amended and Restated OP Agreement
(included as Annex C to proxy statement/prospectus)
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