Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of February 3, 1999
(this "Amendment"), between ProLogis Trust, a Maryland real estate investment
trust (the "Company"), and Meridian Industrial Trust, Inc., a Maryland
corporation ("MIT"). Capitalized terms, unless defined herein, shall have the
meaning assigned to them in the Merger Agreement (defined below).
WHEREAS, the Company and MIT have entered into that certain Agreement and
Plan of Merger, dated as of November 16, 1998 (the "Merger Agreement"); and
WHEREAS, the Company and MIT desire to amend the Merger Agreement as set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties to this Amendment hereby amend the
Merger Agreement (in accordance with Section 7.3 of the Merger Agreement) as
follows:
1. Exhibit A to the Merger Agreement is hereby amended and restated in
its entirety as set forth on Exhibit A hereto.
2. Exhibit F to the Merger Agreement is hereby amended and restated in
its entirety as set forth on Exhibit B hereto.
3. Schedule 3.2(b) to the Merger Agreement is hereby amended and restated
in its entirety as set forth on Schedule 3 hereto.
4. The following provisions of Article II of the Merger Agreement are
hereby amended as follows:
(a) The last sentence of Article II, Section 2.1(b) is hereby amended
and restated in its entirety as follows:
"All such shares of MIT Common Stock and MIT Series D Preferred Stock,
when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares and each
holder of any uncertificated shares shall cease to have any rights
with respect thereto, except the right to receive the applicable
Merger Consideration and any unpaid dividends and distributions that
such holder has the right to receive pursuant to Section 2.2(c), to be
issued or paid in consideration therefor upon the surrender of such
certificates or exchange of such uncertificated shares in accordance
with Section 2.2, without interest."
(b) In the first sentence of Article II, Section 2.2(a), the second
parenthetical phrase is hereby amended and restated in its entirety as
follows:
"(such cash and such shares of Company Common Stock and Company
Cumulative Redeemable Preferred Stock, together with any dividends or
distributions with respect to all shares of Company Common Stock and
Company Cumulative Convertible Preferred Stock issuable pursuant to
Section 2.1, being hereinafter referred to as the "Exchange Fund")"
(c) Article II, Section 2.2(b) is hereby amended and restated in its
entirety as follows:
" (b) Exchange Procedures.
(i) As soon as reasonably practicable 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 outstanding shares of MIT Common
Stock or MIT Series D Preferred Stock (each, a "Certificate"),
which holder's shares of MIT Common Stock or MIT Series D
Preferred Stock were converted into the right to receive the
amount of Cash Consideration, if any, and the number of shares of
Company Common Stock or Company Cumulative Redeemable Preferred
Stock, as the case may be, set forth in Section 2.1: (i) a letter
of transmittal ("Letter of Transmittal") which shall specify that
delivery shall be effected and risk of loss and title to the
Certificates shall pass only upon delivery of the Certificates to
the Exchange Agent, and shall be in such form and have such other
provisions as the Surviving Entity may reasonably specify; and
(ii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing shares of
Company Common Stock or Company Cumulative Redeemable Preferred
Stock, as the case may be. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with the Letter of
Transmittal, duly executed, and any other documents reasonably
required by the Surviving Entity or the Exchange Agent, (A) the
holder of a Certificate formerly representing shares of (1) MIT
Common Stock shall be entitled to receive in exchange therefor
the amount of Cash Consideration, if any, and a certificate
representing that number of shares of Company Common Stock, or
(2) MIT Series D Preferred Stock shall be entitled to receive a
certificate representing that number of shares of Company
Cumulative Redeemable Preferred Stock, which such holder has the
right to receive pursuant to the provisions of this Article II,
and any unpaid dividends and distributions that such holder has
the right to receive pursuant to Section 2.2(c); and (B) the
Certificate so surrendered shall forthwith be canceled. In the
event of a transfer of ownership of MIT Common Stock or MIT
Series D Preferred Stock, which is not registered in the transfer
records of MIT, the appropriate
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amount of Cash Consideration, if any, and a certificate
representing the appropriate number of shares of Company Common
Stock or Company Cumulative Redeemable Preferred Stock, as the
case may be, may be paid and issued to a transferee if the
Certificate representing such MIT Common Stock or MIT Series D
Preferred Stock is presented to the Exchange Agent properly
endorsed or accompanied by appropriate stock powers and otherwise
in proper form for transfer and accompanied by all documents
required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 2.2, each Certificate
shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the appropriate
amount of Cash Consideration, in the case of a certificate
representing MIT Common Stock, and the certificate representing
shares of Company Common Stock or Company Cumulative Redeemable
Preferred Stock, as the case may be, and any unpaid dividends and
distributions that such holder has the right to receive pursuant
to Section 2.2(c). The Exchange Agent shall not be entitled to
vote or exercise any rights of ownership with respect to Company
Common Stock or Company Cumulative Redeemable Preferred Stock, as
the case may be, held by it from time to time hereunder, except
that it shall receive and hold all dividends or other
distributions paid or distributed with respect thereto for the
account of persons entitled thereto.
(ii) As soon as reasonably practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of
uncertificated shares of MIT Common Stock or MIT Series D
Preferred Stock, which holder's shares of MIT Common Stock or MIT
Series D Preferred Stock were converted into the right to receive
the amount of Cash Consideration, if any, and the number of
shares of Company Common Stock or Company Cumulative Redeemable
Preferred Stock, as the case may be, set forth in Section 2.1, if
requested by the Company: (i) a letter of transmittal which shall
specify that delivery of any initial transaction statement shall
be effected and risk of loss and title to the shares represented
thereby shall pass only upon delivery of the letter of
transmittal to the Exchange Agent, and shall be in such form and
have such other provisions as the Surviving Entity may reasonably
specify; and (ii) instructions for completing such letter of
transmittal to effect the exchange of such uncertificated shares
of MIT Common Stock or MIT Series D Preferred Stock into
uncertificated shares of Company Common Stock or Company
Cumulative Redeemable Preferred Stock, as the case may be. Upon
valid delivery of a letter of
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transmittal to the Exchange Agent, together with any other
documents reasonably required by the Surviving Entity or the
Exchange Agent, or if no letter of transmittal is requested by
the Company, at the Effective Time, (A) the holder of
uncertificated shares of (1) MIT Common Stock shall be entitled
to receive in exchange therefor the amount of Cash Consideration,
if any, and an initial transaction statement representing that
number of shares of Company Common Stock, or (2) MIT Series D
Preferred Stock shall be entitled to receive an initial
transaction statement representing that number of shares of
Company Cumulative Redeemable Preferred Stock, which such holder
has the right to receive pursuant to the provisions of this
Article II, and any unpaid dividends and distributions that such
holder has the right to receive pursuant to Section 2.2(c); and
(B) the transaction statement on the books and records of MIT
shall forthwith be canceled. Until exchanged as contemplated by
this Section 2.2, each uncertificated share of MIT Common Stock
and MIT Series D Preferred Stock shall be deemed at any time
after the Effective Time to represent only the right to receive
upon such exchange the appropriate amount of Cash Consideration,
in the case of uncertificated shares of MIT Common Stock, and an
initial transaction statement representing uncertificated shares
of Company Common Stock or Company Cumulative Redeemable
Preferred Stock, as the case may be, and any unpaid dividends and
distributions that such holder has the right to receive pursuant
to Section 2.2(c). The Exchange Agent shall not be entitled to
vote or exercise any rights of ownership with respect to Company
Common Stock or Company Cumulative Redeemable Preferred Stock, as
the case may be, held by it from time to time hereunder, except
that it shall receive and hold all dividends or other
distributions paid or distributed with respect thereto for the
account of persons entitled thereto."
(d) Article II, Section 2.2(c) is hereby amended and restated in its
entirety as follows:
" (c) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions with respect to Company Common Stock
or Company Cumulative Redeemable Preferred Stock, as the case may be,
declared or made after the Effective Time with a record date after the
Effective Time shall be paid to the holder of any unsurrendered
Certificate or any unexchanged uncertificated share with respect to
the right to receive shares of Company Common Stock or Company
Cumulative Redeemable Preferred Stock, as the case may be, represented
thereby until the holder of such Certificate or uncertificated share
shall surrender such Certificate or rights in respect of such
uncertificated share. Subject to the effect of
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applicable laws, following surrender of any such Certificate or
exchange of any such uncertificated share, there shall be paid to the
holder thereof, without interest: (i) at the time of such surrender,
the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such shares
of Company Common Stock or Company Cumulative Redeemable Preferred
Stock, as the case may be; and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date
after the Effective Time but prior to such surrender and a payment
date subsequent to such surrender payable with respect to such shares
of Company Common Stock or Company Cumulative Redeemable Preferred
Stock, as the case may be."
(e) In the first sentence of Article II, Section 2.2(d), the
parenthetical phrase "(including any additional cash paid pursuant to
Section 2.2(e))" is hereby deleted.
(f) The last sentence of Article II, Section 2.2(d), is hereby
amended and restated in its entirety as follows:
"If, after the Effective Time, Certificates or rights in respect of
uncertificated shares of MIT Common Stock or MIT Series D Preferred
Stock are presented to the Surviving Entity for any reason, they shall
be canceled and exchanged as provided in this Article II."
(g) Article II, Section 2.2(e) is hereby eliminated in its entirety
and replaced by the following:
"(e) Intentionally Omitted."
(h) Article II, Section 2.2(f) is hereby amended and restated in its
entirety by the following:
" (f) Termination of Exchange Fund. Any portion of the Exchange
Fund made available to the Exchange Agent that remains undistributed
to the former stockholders of MIT on the first anniversary of the
Effective Time shall be delivered to the Surviving Entity, upon
demand, and any stockholders of MIT who have not theretofore received
any applicable Cash Consideration, Company Common Stock or Company
Cumulative Redeemable Preferred Stock, as the case may be, and any
dividends or distributions to which they are entitled under this
Article II shall thereafter look only to the Surviving Entity for
payment of their claims with respect thereto and only as general
creditors thereof."
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(j) In the first sentence of Article II, Section 2.2(g), the phrase
"or any cash in lieu of fractional shares of Company Common Stock" is
hereby deleted.
(j) Article II, Section 2.2(h) is hereby amended and restated in its
entirety as follows:
" (h) Lost, Stolen, or Destroyed Certificates. If any Certificate
shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be
lost, stolen or destroyed and, if required by the Surviving Entity,
the posting by such person of a bond in such reasonable amount as the
Surviving Entity may direct as indemnity against any claim that may be
made against it with respect to such Certificate, the Exchange Agent
shall issue in exchange for such lost, stolen or destroyed Certificate
the appropriate amount of Cash Consideration payable in respect of
shares of MIT Common Stock and a certificate representing that number
of shares of Company Common Stock or Company Cumulative Redeemable
Preferred Stock, as the case may be, which such holder has the right
to receive pursuant to the provisions of this Article II, and any
unpaid dividends and distributions that such holder has the right to
receive pursuant to Section 2.2(c)."
(k) Article II, Section 2.2(i) is hereby amended and restated in its
entirety as follows:
" (i) Withholding of Tax. The Surviving Entity shall be entitled
to deduct and withhold from the Merger Consideration and dividends or
distributions otherwise payable pursuant to this Agreement to any
holder of a Certificate or holder of uncertificated shares of MIT
Common Stock or MIT Series D Preferred Stock, such amount as the
Surviving Entity (or any affiliate thereof) or the Exchange Agent is
required to deduct and withhold with respect to the making of such
payment under federal, state, local or foreign tax law. To the extent
that amounts are so withheld by the Surviving Entity, such withheld
amounts shall be treated for all purposes of this Agreement as having
been paid to the former holder of a Certificate or holder of
uncertificated shares of MIT Common Stock or MIT Series D Preferred
Stock or other stockholders of MIT in respect of which such deduction
and withholding was made by the Surviving Entity."
5. Article III, Section 3.2(s) of the Merger Agreement is hereby amended
and restated in its entirety as follows:
" (s) Vote Required. The affirmative vote of at least two-thirds
of the outstanding shares of Company Common Stock entitled to vote
with respect to the approval of this Agreement and the transactions
contemplated
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hereby, including the issuance of Company Common Stock in the Merger,
is the only vote of the holders of any class or series of the
Company's shares of beneficial interest necessary to approve this
Agreement and the transactions contemplated hereby."
6. Article V, Section 5.9 paragraphs (a), (b) and (c) of the Merger
Agreement are hereby amended and restated in their entirety as follows:
"5.9 Employee Matters. (a) The Company and MIT agree that MIT shall
terminate the employment of all employees of MIT immediately prior to the
Effective Time and the Company and MIT agree that such terminations shall
be deemed to have occurred following a change of control for the purposes
of any applicable employment or severance agreements or severance plans.
(b) After the Effective Time, the Surviving Entity shall provide (or
shall continue to provide) coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), to all former MIT
employees who constitute qualified beneficiaries under COBRA and their
eligible dependents in accordance with the requirements of COBRA.
(c) In the event the Surviving Entity hires any former employee of MIT
or its Subsidiaries on or after the Effective Time, the Surviving Entity
shall determine the terms and conditions of such employment, provided that
the Surviving Entity will provide such employees with the same benefits
that are provided to similarly situated employees of the Company and its
Subsidiaries.
7. Article VI, Section 6.1(b) of the Merger Agreement is hereby amended
and restated in its entirety as follows:
"(b) Company Stockholder Approval. This Agreement and the Merger
(including the issuance of Company Common Stock and all other actions
contemplated hereby that require the approval of the Company's
stockholders) shall have been approved and adopted by the affirmative vote
of the holders of two-thirds of the outstanding shares of Company Common
Stock entitled to vote thereon as is required under the Company's
Declaration of Trust, as amended."
8. Counterparts. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
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9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Maryland, without giving effect to the
principles of conflicts of law thereof.
10. Entire Agreement. This Amendment, together with Merger Agreement,
constitute the entire agreement among the parties with respect to the subject
matter hereto and thereto. Unless specifically modified within this Amendment,
all provisions in the Merger Agreement shall remain in full force and effect,
without alteration.
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IN WITNESS WHEREOF, each party has caused this Amendment to be signed by
its respective officer thereunto duly authorized, all as of the date first
written above.
PROLOGIS TRUST, a Maryland real estate investment
trust
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title:Senior Vice President
MERIDIAN INDUSTRIAL TRUST, INC., a Maryland
corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title:Chairman and Chief Executive Officer
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