EXHIBIT A
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of April 30, 1999
is entered into by and between American Real Estate Investment Corporation, a
Maryland corporation (the "Company"), and Keystone Property Trust, a Maryland
statutory real estate investment trust (the "Trust").
WHEREAS, the respective Boards of Directors of the Company and the Trust
have each determined that it is advisable and in the best interests of their
respective stockholders to consummate, and have approved upon the terms and
subject to the conditions set forth in this Agreement, the merger of the Company
with and into the Trust (the "Merger") with the Trust being the surviving entity
in the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Trust agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. SURVIVING ENTITY. In accordance with the provisions of this
Agreement and Section 3-114 of Maryland General Corporation Law, at the
Effective Time (as defined below), the Company shall be merged with and into the
Trust, and the Trust shall be the surviving entity in the Merger (the "Surviving
Entity"). At the Effective Time, the separate existence of the Company shall
cease.
SECTION 1.02. DECLARATION OF TRUST. The Declaration of Trust of the Trust
as in effect immediately prior to the Effective Time shall be the Declaration of
Trust of the Surviving Entity from and after the Effective Time, until
thereafter amended as provided by law or in such Declaration of Trust.
SECTION 1.03. BY-LAWS. The By-laws of the Trust as in effect immediately
prior to the Effective Time shall be the By-laws of the Surviving Entity from
and after the Effective Time, until thereafter amended or repealed as provided
by law.
SECTION 1.04. THE TRUSTEES. The directors of the Company immediately prior
to the Effective Time shall be the Trustees of the Surviving Entity from and
after the Effective Time and shall hold office until their respective successors
are duly elected or appointed and qualified in the manner provided in the
Declaration of Trust and By-laws of the Surviving Entity, or as otherwise
provided by law.
SECTION 1.05. OFFICERS. The officers of the Company immediately prior to
the Effective Time shall be the officers of the Surviving Entity from and after
the Effective Time and shall hold office until their respective successors are
duly elected or appointed and qualified in the manner provided in the
Declaration of Trust and By-laws of the Surviving Entity, or as otherwise
provided by law.
SECTION 1.06. EFFECTIVE TIME. Articles of Merger containing the provisions
required in Section 3-109 of the Maryland General Corporation Law shall be duly
prepared and executed by the Company and the Trust, and thereafter delivered to
the State Department of Assessments and Taxation of the State of Maryland (the
"Secretary of State") for filing, as provided in Sections 3-107 and 8-501.1 of
the Maryland General Corporation Law. The Merger shall become effective at the
time of acceptance for record of the Articles of Merger with the Secretary of
State in accordance with the provisions of Sections 3-107 and 8-501.1 of the
Maryland General Corporation Law (the "Effective Time").
SECTION 1.07. ADDITIONAL ACTIONS. If, at any time after the Effective Time,
the Surviving Entity determines that any deeds, bills of sale, assignments,
assurances or any other acts or things are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving Entity, its right,
title or interest in, to or under any of the rights, properties or assets of the
Company acquired or to be acquired by reason of, or as a result of, the Merger,
or (b) otherwise to carry out the purposes of this Agreement, the Surviving
Entity and its proper officers and directors shall be authorized to execute and
deliver, in the name and on behalf of the Company, all such deeds, bills of
sale, assignments and assurances and to do, in the name and on behalf of the
Company, all such other acts and things necessary or desirable to vest,
perfect or confirm any and all right, title or interest in, to or under such
rights, properties or assets in the Surviving Entity or otherwise to carry out
the purposes of this Agreement.
ARTICLE II
CONVERSION OF SHARES
SECTION 2.01 COMPANY COMMON STOCK AND PREFERRED STOCK. Each share of common
stock, par value $0.001 per share of the Company (the "Company Common Stock"),
and each share of Series A Convertible Preferred Stock, par value $0.001 per
share of the Company (the "Company Preferred Stock"), actually issued and
outstanding at the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, (A) in the case of Company Common
Stock, be converted into one validly issued, fully paid and non-assessable share
of the common stock, par value $0.001 per share, of the Trust (the "Trust Common
Stock") and (B) in the case of Company Preferred Stock, be converted into one
validly issued, fully paid and non-assessable share of Series A Convertible
Preferred Stock, par value $0.001 per share, of the Trust (the "Trust Preferred
Stock"). Certificates representing shares of Company Common Stock and Company
Preferred Stock before the Merger will represent the Trust Common Stock and the
Trust Preferred Stock, respectively, after the Merger and it will not be
necessary for stockholders of the Company to surrender or exchange their
existing stock certificates for new stock certificates.
SECTION 2.02 CANCELLATION OF TREASURY STOCK AND COMPANY COMMON STOCK OWNED
BY THE COMPANY. All shares of Company Common Stock that are owned by the Company
as treasury stock and any shares of Company Common Stock owned by any
wholly-owned Subsidiary (as defined below) of the Company shall be cancelled and
retired and shall cease to exist and no stock of the Trust or other
consideration shall be delivered in exchange therefor. As used in this
Agreement, "Subsidiary" means, with respect to any party, any corporation or
other organization, whether incorporated or unincorporated, of which more than
fifty percent (50%) of either the equity interests in, or the voting control of,
such corporation or other organization is, directly or indirectly through
Subsidiaries or otherwise, beneficially owned by such party.
SECTION 2.03 OPTIONS AND WARRANTS. Each option or warrant to purchase a
share of Company Common Stock (a "Company Stock Option") which is outstanding
immediately prior to the Effective Time shall be converted into an option or
warrant to purchase a share of Trust Common Stock (a "Trust Stock Option"). Each
Trust Stock Option and the obligation to issue shares of Trust Common Stock upon
exercise of such Trust Stock Option shall be assumed by the Trust effective as
of the Effective Time. Fractional shares shall not be issued upon the exercise
of Trust Stock Options. Each Trust Stock Option shall otherwise be exercisable
upon the same terms and conditions as set forth in the option agreement
respecting the Company Stock Option converted into such Trust Stock Option.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. TERMINATION. This Agreement may be terminated and abandoned
by action of the Board of Directors of each of American and the Trust at any
time prior to the Effective Time, whether before or after approval by the
stockholders of American and the Trust.
SECTION 3.02. APPROVAL OF STOCKHOLDERS. The respective obligation of each
party to effect the Merger is subject to adoption by the requisite vote of the
stockholders of each of the Company and the Trust pursuant of Section 3-105 and
8-501.1 of the Maryland General Corporation Law.
2
IN WITNESS WHEREOF, each of American and the Trust has executed this
Agreement, or has caused this Agreement to be executed on its behalf by a
representative duly authorized, all as of the day and year first above written.
AMERICAN REAL ESTATE
INVESTMENT CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
KEYSTONE PROPERTY TRUST
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
3
