EQUITY RESIDENTIAL PROPERTIES TRUST
EVANS WITHYCOMBE RESIDENTIAL, INC.
ARTICLES OF MERGER
EQUITY RESIDENTIAL PROPERTIES TRUST, a Maryland real estate investment
trust ("EQR"), and EVANS WITHYCOMBE RESIDENTIAL, INC., a Maryland
corporation ("EWR"), certify to the State Department of Assessments and
Taxation of Maryland:
THE MERGER. EQR and EWR agree to merge in the manner hereinafter
set forth. Subject to the acceptance for record of these Articles of
Merger ("Articles") by the State Department of Assessments and Taxation of
Maryland (the "Department") and the occurrence of the Effective Time (as
defined below), EWR shall be merged with and into EQR in accordance with
Sections 3-101 ET SEQ. and 8-501.1 of the Corporations and Associations
Article (the "Maryland Code") of the Annotated Code of Maryland, and the
separate existence of EWR shall thereupon cease (the "Merger").
1. FORMATION. EQR and EWR are formed under Titles 8 and 2 of the
Maryland Code, respectively.
2. PRINCIPAL OFFICES. The principal office of each of EQR and EWR
in the State of Maryland is located in Baltimore City.
3. OWNERSHIP OF LAND INTERESTS. EWR owns no interests in land
located within the State of Maryland.
4. DECLARATION OF TRUST. The Second Amended and Restated
Declaration of Trust of EQR (the "Declaration"), as amended and restated
and as in effect immediately prior to the Effective Time, shall continue in
full force and effect until duly amended in accordance with its terms and
applicable law.
5. EFFECTIVE TIME. Provided that prior thereto both parties to
these Articles shall not have caused a notice of abandonment to have been
given to the Department, the Merger shall be effective at 4:15 p.m. on the
date on which the Department accepts these Articles for record (the time at
which the Merger becomes effective being herein referred to as the
"Effective Time"). In the event that both parties to these Articles shall
have caused a notice of abandonment to be given to the Department prior to
4:15 p.m. on the date on which the Department accepts these Articles for
record, neither the Effective Time nor the consequences thereof as provided
for under these Articles or the Maryland Code shall occur as a result of
the filing of these Articles. The date on which the Effective Time occurs
is herein referred to as the "Effective Date".
6. EFFECTS. The Merger shall have the effects specified in
Sections 3-114 and 8-501.1(n) of the Maryland Code. At the Effective Time
all the properties, rights, privileges, powers and franchises of EWR shall
vest in EQR and all debts, liabilities and duties of EWR shall become the
debts, liabilities and duties of EQR. If at any time EQR shall consider or
be advised that any further assignments, conveyances or assurances in law
are necessary or desirable to vest, perfect or confirm in EQR the title to
any property or rights of EQR or EWR or otherwise to carry out the
provisions hereof, the persons who are the proper officers, trustees and
directors of EQR or EWR immediately prior to the Effective Time (or their
successors in office) shall execute and deliver any and all proper deeds,
assignments and assurances in law, and do all things necessary or proper,
to vest, perfect or confirm title to such property or rights in EQR and
otherwise to carry out the provisions hereof. EQR shall continue to be
governed by Title 8 of the Maryland Code.
7. APPROVAL OF MERGER. The terms and conditions of the Merger were
duly advised, authorized and approved by EQR in the manner and by the vote
required by Title 8 of the Maryland Code and the Amended and Restated
Declaration of Trust of EQR as follows:
(a) The Board of Trustees of EQR, at a meeting duly called and
held, adopted a resolution declaring that the terms and
conditions of the Merger described herein were advisable and
directing that the proposed transaction be submitted for
consideration by the shareholders of EQR.
(b) The shareholders of EQR entitled to vote on the proposed
merger, at a meeting duly called and held, adopted a
resolution approving the Merger.
The terms and conditions of the Merger were duly advised,
authorized and approved by EWR in the manner and by the vote required by
the laws of the State of Maryland and the charter of EWR as follows:
(a) The Board of Directors of EWR, at a meeting duly called and
held, adopted a resolution declaring that the terms and
conditions of the Merger described herein were advisable and
directing that the proposed transaction be submitted for
consideration by the shareholders of EWR.
(b) The shareholders of EWR entitled to vote on the proposed
merger, at a meeting duly called and held, adopted a
resolution approving the Merger.
The shareholders of EWR are not entitled to any appraisal rights in
connection with the Merger.
8. TRUSTEES. As of the Effective Time, the trustees of EQR and
their terms of office shall be as set forth on Exhibit "A" attached hereto.
If any of the individuals named in Exhibit "A" are unable to serve as a
trustee of EQR at the Effective Time, his successor will be nominated and
elected in accordance with the laws of the State of Maryland and the Bylaws
of EQR.
9. CAPITAL.
(a) EWR's charter as in effect immediately prior to the Effective
Time (the "Charter") authorizes the issuance of 100,000,000 shares of
common stock, $.01 par value per share ("EWR Common"), and 10,000,000
shares of preferred stock, $.01 par value per share ("EWR Preferred").
The aggregate par value of all the authorized shares of EWR is
$1,100,000.
(b) EQR's Declaration authorizes the issuance of 300,000,000
shares of beneficial interest, of which 200,000,000 are common shares,
$.01 par value par share ("EQR Common"), and 100,000,000 are preferred
shares. EQR has established the following series of preferred shares:
(i) 6,900,000 shares of 9-3/8% Series A Cumulative Redeemable
Preferred Shares of Beneficial Interest, par value $.01 per share;
(ii) 575,000 shares of 9-1/8% Series B Cumulative Redeemable Preferred
Shares of Beneficial Interest, par value $.01 per share; (iii) 460,000
shares of 9-1/8% Series C Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.01 per share; (iv) 805,000 shares of
8.60% Series D Cumulative Redeemable Preferred Shares of Beneficial
Interest, par value $.01 per share; (v) 4,600,000 shares of Series E
Convertible Preferred Shares of Beneficial Interest, par value $.01
per share; (vi) 2,300,000 shares of Series F Cumulative Redeemable
Preferred Shares of Beneficial Interest, par value $.01 per share;
(vii) 1,265,000 shares of 7-1/4% Series G Convertible Cumulative
Preferred Shares of Beneficial Interest, par value $.01 per share
10. CONVERSION. The manner of converting the shares of EWR shall be
as follows:
(a) Subject to the provisions of Section 11(c) hereof, at the
Effective Time, each share of EWR Common outstanding immediately prior
to the Effective Time shall, without any action on the part of the
holder thereof, be converted into 0.5 of a share of EQR Common. There
shall be no change in the capital structure of EQR.
(b) At the Effective Time, each certificate representing
outstanding shares of EWR Common will, without any action on the part
of the holder thereof, thereafter represent the right to receive,
without interest, the EQR Common as calculated pursuant to
Section 11(a) above and cash in lieu of fractional shares of the EQR
Common in accordance with Section 11(c), upon the surrender of such
EWR certificate or certificates.
(c) Notwithstanding any other provision hereof, no fractional
shares of EQR Common shall be issued in connection with the Merger.
Instead, each holder of outstanding EWR Common having a fractional
interest arising upon the conversion or exchange of such shares in
connection with the Merger shall, at the time of surrender of its EWR
certificate or certificates, be paid an amount in cash equal to the
Closing Price (as hereinafter defined) multiplied by the fraction of a
share of EQR Common to which such holder would otherwise be entitled.
In the event that any one holder holds more than one certificate
representing EWR Common, the shares represented by all such
certificates surrendered together for conversion or exchange shall be
aggregated and one new certificate representing EQR Common shall be
issued in respect of such certificates representing EWR Common,
insofar as is necessary to reduce the number of fractional interests
in respect of EQR Common which would otherwise arise. No such holder
shall be entitled to dividends or other distributions, voting rights
or any other shareholder rights in respect of any fractional share.
For purposes of this Section 11(c), "Closing Price" shall mean the
unweighted average closing price of a share of EQR Common (as reported
in the New York Stock Exchange, Inc. Composite Tape) for the five (5)
Trading Days immediately preceding the Effective Date, and "Trading
Day" shall mean any day on which EQR Common is traded on the New York
Stock Exchange and reported on its Composite Tape.
(d) At the Effective Time, each outstanding option to purchase
EWR Common (a "EWR Stock Option" or collectively "EWR Stock Options")
shall terminate and shall be of no further force or effect.
(e) The 1994 Stock Incentive Plan of EWR and the Non-Employee
Directors Stock Plan of EWR shall each terminate effective as of the
Effective Time.
(f) Each outstanding share of EWR Common which was subject to any
risk of forfeiture immediately prior to the Effective Time shall, by
virtue of the Merger, become fully vested immediately prior to the
Merger, and shall no longer be subject to any risk of forfeiture.
11. EXCHANGE OF CERTIFICATES.
(a) As of the Effective Time, EQR shall deposit, or shall cause
to be deposited, with an exchange agent selected by EQR (the "Exchange
Agent"), for the benefit of the holders of certificates representing
EWR Common (the "EWR Certificates"), for exchange in accordance with
this Section 11, certificates representing the EQR Common (the "EQR
Certificates") to be issued pursuant to this Section 11.
(b) Promptly after the Effective Time, EQR shall cause the
Exchange Agent to mail to each holder of record of EWR Common a letter
of transmittal which shall specify (i) that delivery shall be
effected, and risk of loss and title to EWR Certificates shall pass,
only upon delivery of such EWR Certificates to the Exchange Agent, and
shall be in such form and have such other provisions as EQR may
reasonably specify, and (ii) instructions for use in effecting the
surrender of such EWR Certificates in exchange for EQR Certificates
and cash in lieu of fractional shares of EQR Common. Upon surrender
of one or more EWR Certificates for cancellation to the Exchange
Agent, duly executed and completed in accordance with the instructions
thereto, together with such letter of transmittal, the holder of such
EWR Certificates so surrendered shall be entitled to receive in
exchange therefor (x) an EQR Certificate representing the number of
whole shares of EQR Common and (y) a check representing the amount of
cash in lieu of fractional shares of EQR Common, if any, and unpaid
dividends and distributions, if any, which such holder has the right
to receive pursuant to the provisions of Section 11(c) in respect of
the one or more EWR Certificates surrendered, after giving effect to
any required withholding tax, and the one or more EWR Certificates so
surrendered shall forthwith be cancelled. No interest will be paid or
accrued on the cash in lieu of fractional shares of EQR Common and
unpaid dividends and distributions, if any, payable to holders of EWR
Certificates. In the event of a transfer of ownership of EWR Common
which is not registered in the transfer records of EWR, an EQR
Certificate evidencing the proper number of EQR Common, together with
a check for the cash to be paid in lieu of any fractional shares of
EQR Common, if any, and unpaid dividends and distributions, if any,
which such holder has the right to receive pursuant to Section 11(c)
in respect of the EWR Certificate so surrendered, after giving effect
to any required withholding tax, may be issued to such a transferee if
the EWR Certificate is presented to the Exchange Agent, accompanied by
all documents required to evidence and effect such transfer and to
evidence that any applicable stock transfer taxes have been paid. All
EWR Certificates so surrendered will be cancelled forthwith.
Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of EWR Common for any EQR
Common or dividends or other distributions thereon, or cash in lieu of
any fractional EQR Common, delivered to a public official pursuant to
applicable escheat law.
(c) Notwithstanding any other provisions of these Articles, no
dividends or other distributions on EQR Common shall be paid with
respect to any EWR Common represented by an EWR Certificate until such
EWR Certificate is surrendered for exchange as provided herein.
Subject to the effect of applicable laws, following surrender of any
such EWR Certificate, there shall be paid to the holder of the EQR
Certificate issued in exchange therefor, 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 payable with
respect to such whole shares of EQR Common and not paid, less the
amount of any withholding taxes which may be required thereon, 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
surrender and a payment date subsequent to surrender payable with
respect to such whole shares of EQR Common, less the amount of any
withholding taxes which may be required thereon.
(d) At and after the Effective Time, there shall be no transfers
on the share transfer books of EWR of the EWR Common which was
outstanding immediately prior to the Effective Time. If, after the
Effective Time, EWR Certificates are presented to EQR, they shall be
cancelled and exchanged for certificates evidencing EQR Common and
cash in lieu of fractional EQR Common, if any, and unpaid dividends
and distributions deliverable in respect thereof pursuant to these
Articles in accordance with the procedures set forth in this
Section 11.
(e) Any portion of the EQR Certificates made available to the
Exchange Agent pursuant to Section 11(a) which remains unclaimed by
the holders of EWR Common for one hundred twenty (120) days after the
Effective Time shall be delivered to EQR, upon demand of EQR, and any
former shareholders of EWR who have not theretofore complied with this
Section 11 shall look only to EQR for payment of their shares of EQR
Common, cash in lieu of fractional shares and unpaid dividends and
distributions on the EQR Common deliverable in respect of each share
of EWR Common such shareholder holds as determined pursuant to these
Articles, in each case, without any interest thereon.
(f) None of EWR, EQR, the Exchange Agent or any other person
shall be liable to any former holder of EWR Common for any amount
properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(g) In the event any EWR 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 EQR, the posting by such person of a bond in such
reasonable amount as EQR may direct as indemnity against any claim
that may be made against it with respect to such EWR Certificate, the
Exchange Agent or EQR will issue in exchange for such lost, stolen or
destroyed EWR Certificate the EQR Common and cash in lieu of
fractional EQR Common, and unpaid dividends and distributions on EQR
Common as provided in Section 11(c), deliverable in respect thereof
pursuant to these Articles.
12. AMENDMENT. The parties hereto may amend, modify or supplement
these Articles in whole or in part and in such manner as may be agreed upon
by them in writing at any time before or after the approval of the Merger
by the parties' shareholders as contemplated hereby; provided, however,
that after any such shareholder approval, any such amendment will be
subject to further approval of such shareholders if such further approval
is required under the Declaration or Bylaws of EQR, or the Charter or
Bylaws of EWR, as the case may be, or under applicable law.
13. WAIVER. Any term or provision of these Articles (other than any
matter which cannot under applicable law be waived) may be waived in
writing at any time by the party which is, or whose shareholders are,
entitled to the benefits thereof. The failure of any party at any time or
times to require performance of any provision hereof shall in no manner
affect such party's right at a later time to enforce the same. No waiver
by any party of a condition or of the breach of these Articles, whether by
conduct or otherwise, in any one or more instances shall be deemed to be
construed as a further or continuing waiver of any such condition or breach
or a waiver of any other condition or of the breach of any other term,
covenant, representation or warranty of these Articles.
14. NOTICE. Any notice or other communication required or permitted
under these Articles shall be given, and shall be effective, in accordance
with the provisions of the Merger Agreement.
15. GOVERNING LAW. These Articles shall be governed by and construed
in accordance with the laws of the State of Maryland.
16. COUNTERPARTS. These Articles may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one agreement.
17. ABANDONMENT. The Merger may be abandoned before the Effective
Time by majority vote of the entire board of trustees of EQR and board of
directors of EWR.
IN WITNESS WHEREOF, these Articles have been signed on this 23rd day
of December, 1997 by the Executive Vice President of EQR and the
Chairman and CEO of EWR, and each of the undersigned acknowledges
these Articles to be the act of the entity on whose behalf he or she has
signed, and as to all matters or facts required to be verified under oath,
each of the undersigned acknowledges that to the best of his or her
knowledge, information, and belief, the matters and facts are true in all
material respects and such statement is made under the penalties for
perjury.
EQUITY RESIDENTIAL PROPERTIES EVANS WITHYCOMBE RESIDENTIAL,
TRUST INC.
By: /s/ Bruce Strohm By: /s/ Stephen O. Evans
Bruce C. Strohm Stephen O. Evans
Executive Vice President Chairman and CEO
Attest: /s/ Mariann Demkovich Attest: /s/ Paul R. Fannin
Mariann Demkovich Paul R. Fannin
Assistant Secretary Secretary
EXHIBIT A
TRUSTEES OF SURVIVING TRUST
TRUSTEE TERM EXPIRES
Samuel Zell 1999
Douglas Crocker II 1998
Sheli Z. Rosenberg 1998
Gerald A. Spector 1998
James D. Harper, Jr. 1998
Errol R. Halperin 1999
Barry S. Sternlicht 2000
John W. Alexander 1999
B. Joseph White 2000
Henry H. Goldberg 1999
Jeffrey M. Lynford 2000
Edward Lowenthal 2000
Stephen O. Evans 2000