AGREEMENT AND PLAN OF MERGER
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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") dated as of October 16, 2020, is entered into by and among Xxxxxxx Industrial Realty, Inc., a Delaware corporation ("Xxxxxxx Delaware"), Xxxxxxx Industrial Maryland, Inc., a Maryland corporation ("Xxxxxxx Maryland") and a wholly-owned subsidiary of Xxxxxxx Delaware, and Xxxxxxx Industrial Maryland, LLC, a Maryland limited liability company (“Xxxxxxx Maryland Sub”) and a wholly-owned subsidiary of Xxxxxxx Maryland.
RECITALS
AGREEMENT
In consideration of the premises and the agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, Xxxxxxx Maryland, Xxxxxxx Maryland Sub and Xxxxxxx Delaware hereby agree as follows:
Section 1. Merger.
Subject to the terms and conditions set forth in this Merger Agreement, Xxxxxxx Delaware will merge with and into Xxxxxxx Maryland Sub, a wholly-owned subsidiary of Xxxxxxx Maryland, and Xxxxxxx Delaware will cease to exist and Xxxxxxx Maryland Sub will be the surviving entity (the "Merger"). Xxxxxxx Maryland Sub is hereinafter sometimes referred to as the "Surviving Entity." Provided the conditions set forth in Section 9 of this Merger Agreement have been satisfied or waived, Xxxxxxx Delaware and Xxxxxxx Maryland Sub will, at such time as they deem advisable, cause a Certificate of Merger (the "Certificate of Merger") to be executed, acknowledged and filed with the Secretary of State of Delaware as provided in Section 264 of the Delaware Code and Articles of Merger (the "Articles of Merger") to be filed with, and accepted for record by, the State Department of Assessments and Taxation of Maryland (the "SDAT") as provided for in the Maryland Limited Liability Company Act (the “Maryland Code”). The Merger will become effective as of the later to occur of the filing of a Certificate of Merger
with the Secretary of State of Delaware and the acceptance for record of the Articles of Merger by the SDAT, or such later time as is specified in the Certificate of Merger and Articles of Merger (not to exceed thirty (30) days from the date the Articles of Merger are accepted for record by the SDAT) (the "Effective Time"). The parties intend by this Merger Agreement to effect a "reorganization" under Section 368 of the Internal Revenue Code of 1986, as amended (the “IRC”).
Section 2. Manner and Basis of Converting Shares.
Xxxxxxx Maryland is the sole member of Xxxxxxx Maryland Sub, owning a 100% interest therein. Xxxxxxx Maryland has authority to issue fifteen million (15,000,000) shares of capital stock, including ten million (10,000,000) shares of common stock having a par value of $0.01 per share ("Maryland Common Stock"), and five million (5,000,000) shares of preferred stock having a par value of $0.01 per share ("Maryland Preferred Stock"). As of the date of this Merger Agreement, 100 shares of Maryland Common Stock were issued and outstanding, all of which are owned by Xxxxxxx Delaware, and no shares of Maryland Preferred Stock were issued and outstanding. Xxxxxxx Delaware has authority to issue fifteen million (15,000,000) shares of capital stock, including ten million (10,000,000) shares of common stock having a par value of $0.01 per share ("Delaware Common Stock"), and five million (5,000,000) shares of preferred stock having a par value of $0.01 per share ("Delaware Preferred Stock"). As of the date of this Merger Agreement, 6,270,826 shares of Delaware Common Stock were issued, of which 5,657,302 were outstanding, and no shares of Delaware Preferred Stock were issued or outstanding.
At the Effective Time, (a) each issued and outstanding share of Delaware Common Stock will immediately be converted into one validly issued, fully paid and nonassessable share of Maryland Common Stock without an exchange of certificates or any action on the part of the stockholders thereof; (b) the 100 shares of Maryland Common Stock owned by Xxxxxxx Delaware, that will then be owned by Xxxxxxx Maryland Sub by virtue of the Merger, will be cancelled and retired and resume the status of authorized and unissued shares, and any capital represented by such shares will be eliminated; and (c) each share of Delaware Common Stock held in Xxxxxxx Delaware's treasury, will be cancelled and retired without payment of any consideration therefor and will cease to exist. Xxxxxxx Maryland will continue to own a 100% interest in the Surviving Entity.
Section 3. Options.
At the Effective Time, Xxxxxxx Maryland will assume and continue all of Xxxxxxx Delaware's equity incentive plans and agreements, including but not limited to the Xxxxxxx Industrial Realty, Inc. 2009 Stock Option Plan, the Xxxxxxx Industrial Realty, Inc. and Xxxxxxx Industrial, LLC 2020 Incentive Award Plan (the “2020 Equity Plan”), and the outstanding and unexercised portions of all stock options to buy Delaware Common Stock will become stock options to buy the same number of shares of Maryland Common Stock with no other changes in the terms and conditions of such stock options, including exercise prices, and effective upon the Effective Time, Xxxxxxx Maryland hereby assumes the outstanding and unexercised portions of such stock options and the obligations of Xxxxxxx Delaware with respect thereto. At the Effective Time, Xxxxxxx Maryland Sub will assume and continue all of Xxxxxxx Industrial, LLC’s rights and obligations under the 2020 Equity Plan. At the Effective Time, the maximum aggregate number of shares of Maryland Common Stock that may be available for issuance pursuant to incentive stock options (within the meaning of Treas. Reg. 1.422-2) under the 2020 Equity Plan equals 300,000, and the following individuals will be eligible to receive incentive stock options under the 2020 Equity Plan: employees of Xxxxxxx Maryland, any of Xxxxxxx Maryland’s present or future “parent corporations” or “subsidiary corporations” as defined in Sections 424(e) or (f) of the IRC, respectively, or any other entities the employees of which are eligible to receive incentive stock options under the IRC.
Section 4. Stock Certificates.
Upon and after the Effective Time, all of the outstanding certificates which prior to that time represented shares of Delaware Common Stock will be deemed for all purposes to represent and certify ownership of the shares of Maryland Common Stock into which the shares of Xxxxxxx Delaware represented by such certificates have been converted as herein provided. The registered owner on the books and records of Xxxxxxx Delaware or its transfer agent of any such outstanding stock certificate will, until such certificate is surrendered for transfer or conversion or otherwise accounted for to Xxxxxxx Maryland or its transfer agent, have and be entitled to exercise
any voting and other rights with respect to, and to receive any dividend and other distributions upon, such shares of Maryland Common Stock.
Section 5. Governing Documents.
The Articles of Organization and Operating Agreement of Xxxxxxx Maryland Sub in effect at the Effective Time will be the Articles of Organization and Operating Agreement of Xxxxxxx Maryland Sub as the Surviving Entity until further amended in accordance with their terms and the Maryland Code.
Section 6. Sole Member and Officers.
The sole member and officers, respectively, of Xxxxxxx Maryland Sub immediately prior to the Effective Time will be the sole member and officers, respectively, of the Surviving Entity thereafter, without change, until their successors have been duly elected or appointed and qualified or until their earlier dissolution or death (as applicable), resignation or removal in accordance with the Surviving Entity’s Articles of Organization and Operating Agreement.
Section 7. Effect of the Merger.
The Merger shall have the effects specified in the Delaware Code and the Maryland Code and, upon the effectiveness of the Merger, the Surviving Entity shall possess all the rights, privileges, powers and franchises of a public as well as of a private nature, and shall be subject to all the restrictions, disabilities and duties, of each of Xxxxxxx Delaware and Xxxxxxx Maryland Sub; and all such rights, privileges, powers and franchises of each of Xxxxxxx Delaware and Xxxxxxx Maryland Sub, and all property, real, personal and mixed of each of Xxxxxxx Delaware and Xxxxxxx Maryland Sub, and all debts due to either Xxxxxxx Delaware or Xxxxxxx Maryland Sub on whatever account, shall be vested in the Surviving Entity; and all such rights, privileges, powers, franchises, property and other interests of each of Xxxxxxx Delaware and Xxxxxxx Maryland Sub shall be thereafter as effectually the property of the Surviving Entity as they were of either Xxxxxxx Delaware or Xxxxxxx Maryland Sub, and the title to any real estate vested by deed or otherwise in either Xxxxxxx Delaware or Xxxxxxx Maryland Sub shall not revert or be in any way impaired by reason of the Merger; but all rights of creditors and all liens upon any property of either Xxxxxxx Delaware or Xxxxxxx Maryland Sub shall be preserved unimpaired and all debts, liabilities and duties of either Xxxxxxx Delaware or Xxxxxxx Maryland Sub shall thenceforth attach to the Surviving Entity, and may be enforced against the Surviving Entity to the same extent as if such debts, liabilities and duties had been incurred or contracted by it.
Section 8. Further Assurances.
Each of Xxxxxxx Maryland Sub, Xxxxxxx Maryland and Xxxxxxx Delaware will execute or cause to be executed all documents and will take or cause to be taken all actions and do or cause to be done all things necessary, proper or advisable under the laws of the states of Delaware and Maryland to consummate and effect the Merger and further the purpose of this Merger Agreement.
Section 9. Conditions.
Consummation of the Merger and related transactions is subject to satisfaction of the following conditions prior to the Effective Time:
Section 10. Termination; Amendment.
This Merger Agreement may be terminated and the Merger abandoned or deferred by any of Xxxxxxx Maryland, Xxxxxxx Maryland Sub or Xxxxxxx Delaware by appropriate resolution of the board of directors of either Xxxxxxx Maryland or Xxxxxxx Delaware or the sole member of Xxxxxxx Maryland Sub at any time prior to the Effective Time notwithstanding approval of this Merger Agreement by the stockholders of Xxxxxxx Delaware if circumstances arise which, in the opinion of the board of directors of Xxxxxxx Delaware or Xxxxxxx Maryland or the sole member of Xxxxxxx Maryland Sub make the Merger inadvisable or such deferral of the time of consummation of the Merger advisable. Subject to applicable law and subject to the rights of the stockholders to approve any amendment that would have a material adverse effect on the stockholders, this Merger Agreement may be amended, modified or supplemented by written agreement of the parties hereto at any time prior to the Effective Time with respect to any of the terms contained herein.
Section 11. Governing Law.
This Merger Agreement shall be governed by and construed in accordance with the laws of the States of Delaware and Maryland.
Section 12. Change of Name.
At the Effective Time, Xxxxxxx Maryland will change its name to Xxxxxxx Industrial Realty, Inc.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed and attested to by the persons indicated below as of the date first set forth above.
XXXXXXX INDUSTRIAL MARYLAND, INC.,
a Maryland corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Secretary
XXXXXXX INDUSTRIAL MARYLAND, LLC,
a Maryland limited liability company
By: Xxxxxxx Industrial Maryland, Inc.
Its Sole Member
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Secretary
XXXXXXX INDUSTRIAL REALTY, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Secretary
[Signature Page to Merger Agreement]
