EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), to be effective as of
October __, 1996, is executed by Homegate Hospitality, Inc., a Delaware
corporation ("Homegate"), and Extended Stay Limited Partnership, a Delaware
limited partnership ("ESLP").
RECITALS:
A. The partners of ESLP and the Board of Directors of Homegate deem it
advisable for ESLP to merge with and into Homegate as authorized by Section 263
of the Delaware General Corporation Law (the "DGCL") and on the terms set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions herein contained, the parties hereto agree as follows:
ARTICLE I
The Merger
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1.1 Merger. Subject to Section 1.2 hereof, at the Effective Time (as
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defined in Section 1.3), ESLP shall be merged with and into Homegate, the
separate existence of ESLP shall cease and Homegate, as the surviving entity in
the merger (the "Surviving Entity"), shall continue to exist by virtue of and
shall be governed by the laws of the State of Delaware.
1.2 Condition Precedent. The merger of ESLP with and into Homegate is
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hereby made expressly contingent upon the execution of a definitive Underwriting
Agreement by and between Homegate and Bear Xxxxxxx & Co. Inc. and Xxxxxxxxxx
Securities, as representatives of the several underwriters, with respect to a
firm commitment underwriting of an initial public offering (the "Offering") of
4,325,000 shares of Common Stock, $.01 par value, of Homegate pursuant to that
certain Registration Statement on Form S-1, filed by Homegate with the
Securities and Exchange Commission on August 30, 1996 (File No. 333-11113).
1.3 Effective Time of Merger. Immediately prior to, or substantially
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simultaneously with, the completion of the Offering, Homegate and ESLP shall
file a Certificate of Merger setting forth the information required by, and
otherwise in compliance with, the DGCL with the Secretary of State of the State
of Delaware. The merger of ESLP with and into Homegate (the "Merger") shall
become effective upon the issuance of a certificate of merger by the Secretary
of State (the time of such effectiveness is herein called the "Effective Time").
1.4 Effects of Merger. At the Effective Time, Homegate without further
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action, as provided by the laws of the State of Delaware, shall succeed to and
possess all the rights, privileges, powers and franchises, of a public as well
as of a private nature, of ESLP; and all property, real, personal and mixed, and
all debts due on whatsoever account, including subscriptions to shares, and all
other causes in action, and all and every other interest, of or belonging to or
due to ESLP, shall be deemed to be vested in Homegate without further act or
deed; and the title to any real estate, or any interest therein, vested in
Homegate or ESLP shall not revert or be in any way impaired by reason of the
Merger. Such transfer to and vesting in Homegate shall be deemed to occur by
operation of law and no consent or approval of any other person shall be
required in connection with any such transfer or vesting unless such consent or
approval is specifically required in the event of merger or consolidation by law
or express provision in any contract, agreement, decree, order or other
instrument to which Homegate or ESLP is a party or by which it is bound.
Homegate shall thenceforth be responsible and liable for all debts, liabilities
and duties of ESLP, which may be enforced against Homegate to the same extent as
if said debts, liabilities and duties had been incurred or contracted by it.
Neither the rights of creditors nor any liens upon the property of Homegate or
ESLP shall be impaired by the Merger.
1.5 Articles of Incorporation. The Certificate of Incorporation of
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Homegate as in effect at the Effective Time shall be and remain the Certificate
of Incorporation of the Surviving Entity, until the same shall be amended as
provided by law. No changes are to be effected to the Certificate of
Incorporation of the Surviving Entity as a result of the Merger.
1.6 Bylaws. The Bylaws of Homegate as in effect at the Effective Time
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shall be and remain the Bylaws of the Surviving Entity, until the same shall
thereafter be amended or repealed in accordance with law, the Surviving Entity's
Articles of Incorporation or such Bylaws.
1.7 Officers. The officers of Homegate who are serving as such at the
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Effective Time shall be the officers of the Surviving Entity from and after the
Effective Time, each such individual to serve until his or her successor has
been duly elected or appointed and qualified or until his or her earlier death,
resignation or removal in accordance with law, the Surviving Entity's Articles
of Incorporation and its bylaws.
1.8 Directors. The directors of Homegate who are serving as such
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immediately prior to the Effective Time shall be the directors of the Surviving
Entity from and after the Effective Time, each such individual to serve until
his or her successor has been duly elected or appointed and qualified or until
his or her earlier death, resignation or removal in accordance with law, the
Surviving Entity's Articles of Incorporation and its bylaws.
ARTICLE II
Merger Consideration
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By virtue of the Merger and without any action on the part of any person,
at the Effective Time:
(a) Homegate.
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(i) Each share of Common Stock issued and outstanding
immediately prior to the Effective Time shall be cancelled.
(ii) Homegate shall issue an aggregate of 6,386,666 shares
of Common Stock to the partners of ESLP, with such shares being
allocated among the partners of ESLP as follows:
Partner Homegate Shares
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JMI/Greystar Extended Stay Partners, L.P. 2,260,200
ESH Partners, L.P. 2,260,200
Developer Extended Stay Partners, L.P. 1,073,103
Manager Extended Stay Partners, L.P. 466,566
JMI/Greystar Realty Partners, L.P. 163,298
Crow Hotel Realty Investors, L.P. 100,312
Xxxxxxx X. Xxxx 46,657
J. Xxxxxx Xxxxxxxxxxx 8,165
Xxxxxxx X. Xxxx 8,165
The issuance of Homegate shares of Common Stock to the partners of
ESLP shall be deemed to be pursuant to the liquidation of ESLP in
accordance with Article XVII of the Limited Partnership Agreement of
Extended Stay Limited Partnership (the "Partnership Agreement").
(b) ESLP. ESLP shall liquidate in accordance with Article XVII
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of the Partnership Agreement. In connection with such liquidation, the
partners will receive shares of Common Stock of Homegate, as set forth in
section (a) above.
ARTICLE III
Representations and Warranties
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3.1 Representations and Warranties of ESLP. ESLP hereby represents and
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warrants to Homegate the following:
(a) (i) ESLP and VPS I, L.P. ("VPS") have been duly organized and are
validly existing as limited partnerships in good standing under the laws of
the State of Delaware, with full power and authority to own or lease their
respective properties and conduct their respective businesses. ESLP and VPS
are duly qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification.
(ii) VPS, Inc. (the "Company"; the Company and VPS are hereinafter
collectively referred to as the "Subsidiaries") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with full power and authority to own or lease its
properties and conduct its business. The Company is duly qualified to
transact business in all jurisdictions in which the conduct of its business
requires such qualification.
(b) The Greystar General Partner Representative and the Crow General
Partner Representative, as each are defined in the Partnership Agreement,
have each met in full their initial capital contribution obligations to
ESLP and have consented to the Merger in accordance with Section 10.3 of
the Partnership Agreement, and no other consents or authorizations are
required to enable ESLP to fulfill its obligations hereunder. This
Agreement is a duly authorized and binding obligation of ESLP, enforceable
in accordance with its terms.
(c) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated and the fulfillment of the terms
hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which ESLP or any Subsidiary
is a party, or of the organizational documents of ESLP or any order, rule
or regulation applicable to ESLP or any Subsidiary of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
(d) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by ESLP of this Agreement and the consummation of the transactions herein
contemplated has been obtained or made and is in full force and effect.
3.2 Representations and Warranties of Homegate. Homegate hereby
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represents and warrants to ESLP the following:
(a) Homegate has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full power and authority to own or lease its properties and conduct its
business. Homegate is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification.
(b) This Agreement is a duly authorized and binding obligation of
Homegate, enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the terms
hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust or other agreement or instrument to which Homegate is a party, or
of the organizational documents of Homegate or any order, rule or
regulation applicable to Homegate of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(d) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by Homegate of this Agreement and the consummation of the transactions
herein contemplated has been obtained or made and is in full force and
effect.
(e) The outstanding shares of Common Stock of Homegate have been duly
authorized and validly issued and are fully paid and non-assessable; the
shares of Common Stock to be issued pursuant to this Agreement have been
duly authorized and, when issued and paid for as contemplated herein, will
be validly issued, fully paid and non-assessable. No preemptive rights of
shareholders exist with respect to any of the shares of Common Stock or the
issue and sale thereof.
ARTICLE IV
Miscellaneous
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4.1 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
collectively shall constitute one and the same instrument.
4.2 Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware.
4.3 Section Headings. The section headings contained in this Agreement
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are inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
4.4 Termination. This Agreement may be terminated at any time before
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completion of the filing with the Secretary of State pursuant to Section 1.3
hereof by appropriate resolution of the Board of Directors of Homegate for any
reason which it deems appropriate.
THE SIGNATURE PAGE IS ATTACHED HERETO.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date or dates indicated below, to be effective as of the date first set forth
above.
HOMEGATE HOSPITALITY, INC.,
a Delaware corporation
By:
Xxxxxx X. Faith
President
Date: October , 1996
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EXTENDED STAY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: JMI/GREYSTAR EXTENDED STAY
PARTNERS, L.P., a Delaware limited
partnership, a general partner
By:
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Xxxx Xxxxxx Xxxxxx, XX
Vice President
Date: October , 1996
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By: ESH PARTNERS, L.P., a Texas limited
partnership, a general partner
By:
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Xxxxxxx X. Xxxx
Vice President
Date: October , 1996
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