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EXHIBIT 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of May 30, 1997, by and between EQUITY RESIDENTIAL PROPERTIES TRUST, a
Maryland real estate investment trust ("EQR"), and WELLSFORD RESIDENTIAL
PROPERTY TRUST, a Maryland real estate investment trust ("Wellsford").
R E C I T A L S:
WHEREAS, EQR and Wellsford entered into an Agreement and Plan of Merger
(the "Original Agreement"), dated as of January 16, 1997, providing for the
merger (the "Merger") of EQR with and into Wellsford;
WHEREAS, immediately prior to the Merger, it is contemplated that
Wellsford will contribute certain of its assets to Wellsford Real Properties,
Inc. ("Newco"), a Maryland corporation, and thereafter distribute to its common
shareholders all of the outstanding shares that it owns in Newco (the
"Spin-Off");
WHEREAS, Section 1.12 of the Merger Agreement provides that if for any
reason Wellsford determines to distribute in the Spin-Off less than one share
of common stock of Newco ("Newco Common Share") for each outstanding common
share of beneficial interest of Wellsford ("Wellsford Common Share"), the
parties will amend the Original Agreement and all other agreements contemplated
thereby solely for the purpose of appropriately adjusting all numbers and
dollar amounts which were based on one Newco Common Share being distributed in
the Spin-Off for each outstanding Wellsford Common Share;
WHEREAS, Wellsford has determined to distribute to its common shareholders
0.25 of a Newco Common Share for each one Wellsford Common Share held by its
shareholders, and the parties have agreed to amend the Original Agreement to
reflect this determination;
WHEREAS, since the date of the Original Agreement, EQR has classified and
issued a new class of preferred shares named Series D Preferred Shares of
Beneficial Interest, par value $.01 per share ("Series D Shares");
WHEREAS, as a result of the classification and issuance of the Series D
Shares, upon the closing of the Merger, Series A Cumulative Convertible
Preferred Shares of Beneficial Interest of Wellsford ("Wellsford Series A
Shares") shall be converted into Series E (rather than Series D) Cumulative
Convertible Preferred Shares of Beneficial Interest of the surviving trust, and
Series B Cumulative Redeemable Preferred Shares of Beneficial Interest of
Wellsford ("Wellsford Series B Shares") shall be converted into Series F
(rather
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than Series E) Cumulative Redeemable Preferred Shares of Beneficial Interest of
the surviving trust;
WHEREAS, the parties hereto have agreed to waive the requirement for
"comfort" letters of their respective independent public accountants;
WHEREAS, the parties hereto have agreed to revise Section 5.10(c) of the
Agreement relating to the retention program; and
WHEREAS, the parties hereto have also agreed that each of Jeffrey H.
Lynford and Edward Lowenthal will be designated as a trustee of EQR commencing
on the fifth business day after the consummation of the Merger, rather than
immediately upon consummation of the Merger.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
1. Spin-Off Amendments.
(a) Section 1.2(f) of the Original Agreement is hereby amended in its
entirety to read as follows:
"(f) Wellsford will distribute to its common shareholders,
as a distribution taxable under Code Section 301, all the outstanding
shares of Newco owned by Wellsford as further described in the
Contribution Agreement, so that each holder of common shares of beneficial
interest of Wellsford, $0.01 par value per share ("Wellsford Common
Shares"), receives 0.25 of a common share of Newco for each one Wellsford
Common Share held by such holder (and, if applicable, cash in lieu of
fractional shares)"
(b) Section 1.10(a)(iii) of the Original Agreement is hereby amended in
its entirety to read as follows:
"(iii) $10.00 for each share of Newco distributed to the shareholders
of Wellsford in the Spin-Off less than 4,276,090 shares; and"
(c) Section 1.10(b)(ii) of the Original Agreement is hereby amended in its
entirety to read as follows:
"(ii) $10.00 for each share of Newco distributed to the shareholders
of Wellsford in the Spin-Off in excess of 4,276,090 shares; and"
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(d) The parties hereto agree to appropriately adjust all numbers and
dollar amounts in the documents attached as exhibits to the Original Agreement
which were based on one Newco Common Share being distributed in the Spin-Off
for each outstanding Wellsford Common Share (the "Original Numbers and Dollar
Amounts"), and the parties hereto agree that the Original Numbers and Dollar
Amounts in Exhibit J to the Original Agreement, in Exhibits A(1)-A(5) of the
Wellsford Disclosure Letter and in Schedule 2.2(a) to the form of Contribution
and Distribution Agreement (Exhibit B to the Merger Agreement) shall hereby be
deemed appropriately adjusted, in each case in order that the Original Numbers
and Dollar Amounts reflect the transaction described in Section 1.2(f) of the
Original Agreement, as amended by this Agreement.
2. Preferred Shares. Section 5.17(a) of the Original Agreement is hereby
amended by deleting the parenthetical on the third and fourth lines thereof and
substituting therefor the following: "(which have been converted into Series E
Preferred Shares of the Surviving Trust)". In addition, the Articles of Merger
attached to the Original Agreement as Exhibit "A" shall be amended to provide
that upon the closing of the Merger, Wellsford Series A Shares shall be
converted into Series E (rather than Series D) Cumulative Convertible Preferred
Shares of Beneficial Interest of the surviving trust, and Wellsford Series B
Shares shall be converted into Series F (rather than Series E) Cumulative
Redeemable Preferred Shares of Beneficial Interest of the surviving trust.
3. Comfort Letters. The parties hereto hereby waive the requirement for
"comfort" letters of their respective independent public accountants set forth
in Sections 5.8, 6.2(f) and 6.3(d).
4. Retention Program.
(a) The first sentence of Section 5.10(c) of the Original Agreement is
hereby amended in its entirety to read as follows:
"From and after the Effective Time, the Surviving Trust shall pay the
amounts set forth in letters dated March 16, 1997 given by Wellsford
to certain employees of Wellsford and the Wellsford Subsidiaries (the
"Schedule 5.10 Employees") as and when set forth in such letters (the
"Retention Program"); provided, however, that in no event may the
aggregate obligations of Wellsford and the Surviving Trust under
the Retention Program exceed $544,575."
(b) The last sentence of Section 5.10(c) of the Original Agreement is
hereby deleted.
(c) Exhibit "I" of the Original Agreement is hereby amended to read:
"Intentionally omitted."
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5. Board of Trustees Amendment. The second sentence of Section 5.25 of
the Original Agreement is hereby amended in its entirety to read as follows:
If the Closing Date occurs before the annual meeting of the shareholders
of EQR for 1997, (a) Exhibit "B" to the Articles of Merger shall not list
Jeffrey H. Lynford and Edward Lowenthal as trustees of the Surviving
Trust, but EQR shall take all actions necessary to cause each of Jeffrey
H. Lynford and Edward Lowenthal to be elected as trustees whose terms
commence on the fifth business day after the Closing Date and expire at
the annual meeting of the shareholders of the Surviving Trust held in
1997, and (b) Jeffrey H. Lynford and Edward Lowenthal shall be designated
as management's designees in the Surviving Trust's proxy material for its
annual meeting of shareholders held in 1997 to serve as trustees of the
Surviving Trust with terms expiring at the annual meeting of shareholders
of the Surviving Trust held in 2000.
6. Third-Party Beneficiaries. The first sentence of Section 8.5 is hereby
amended in its entirety to read as follows:
This Agreement, the Wellsford Disclosure Letter, the EQR Disclosure
Letter, the Confidentiality Agreement and the other agreements entered
into in connection with the Transactions (a) constitute the entire
agreement and supersede all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
of this Agreement and (b) except as provided in Section 5.11 and Section
5.25 (as to which Jeffrey H. Lynford and Edward Lowenthal are third-party
beneficiaries) (collectively, the "Third Party Provisions"), are not
intended to confer upon any person other than the parties hereto any
rights or remedies.
7. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
9. Non-recourse.
(a) This Agreement has been entered into or executed on behalf of
Wellsford by the undersigned in his capacity as a trustee or officer of
Wellsford, which has
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been formed as a Maryland real estate investment trust pursuant to an Amended
and Restated Declaration of Trust of Wellsford dated as of November 2, 1992, as
amended and restated, and not individually, and neither the trustees, officers
nor shareholders of Wellsford shall be personally bound or have any personal
liability hereunder. EQR shall look solely to the assets of Wellsford for
satisfaction of any liability of Wellsford with respect to this Agreement. EQR
will not seek recourse or commence any action against any of the shareholders
of Wellsford or any of their personal assets, and will not commence any action
for money judgments against any of the trustees or officers of Wellsford or
seek recourse against any of their personal assets, for the performance or
payment of any obligation of Wellsford hereunder.
(b) This Agreement has been entered into or executed on behalf of EQR by
the undersigned in his capacity as a trustee or officer of EQR, which has been
formed as a Maryland real estate investment trust pursuant to an Amended and
Restated Declaration of Trust of EQR dated as of August 10, 1993, as amended
and restated, and not individually, and neither the trustees, officers nor
shareholders of EQR shall be personally bound or have any personal liability
hereunder. Wellsford shall look solely to the assets of EQR for satisfaction
of any liability of EQR with respect to this Agreement. Wellsford will not
seek recourse or commence any action against any of the shareholders of EQR or
any of their personal assets, and will not commence any action for money
judgments against any of the trustees or officers of EQR or seek recourse
against any of their personal assets, for the performance or payment of any
obligation of EQR hereunder.
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IN WITNESS WHEREOF, EQR and Wellsford have caused this Agreement to be
signed by their respective officers thereunto duly authorized all as of the
date first written above.
EQUITY RESIDENTIAL PROPERTIES TRUST
By: /s/ Bruce C. Strohm
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Name:
Title:
WELLSFORD RESIDENTIAL PROPERTY TRUST
By: /s/ Edward Lowenthal
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Name:
Title:
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