SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): OCTOBER 16, 1998
INSIGNIA PROPERTIES TRUST
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(Exact name of registrant as specified in its charter)
MARYLAND 1-14179 57-1045190
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1873 SOUTH BELLAIRE STREET, 17TH FLOOR, DENVER, COLORADO 80222
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(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code: (303) 757-8101
ONE INSIGNIA FINANCIAL PLAZA, P.O. BOX 19059
GREENVILLE, SOUTH CAROLINA 29602
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(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 7, 1998, the Insignia Properties, L.P. ("IPLP"), a
Delaware limited partnership and the operating partnership of Insignia
Properties Trust, a Maryland real estate investment trust ("IPT"), and
AIMCO Properties, L.P., a Delaware limited partnership (the "AIMCO
Operating Partnership"), and the operating partnership of Apartment
Investment and Management Company, a Maryland corporation ("AIMCO"),
amended and restated a similar agreement, dated as of October 1, 1998 (the
"IPLP Assignment Agreement"). Pursuant to the IPLP Assignment Agreement,
effective October 1, 1998, IPLP transferred (the "IPLP Exchange") the
economic rights to substantially all of the assets of IPLP (the "Assets")
to the AIMCO Operating Partnership, and the AIMCO Operating Partnership
assumed all of IPLP's obligations realty to the Assets in exchange for
approximately 10.2 million common partnership units of the AIMCO Operating
Partnership (the "OP Units"). Immediately following the IPLP Exchange, the
sole assets owned by IPLP consisted of (i) a 100% ownership interest in
Cooper River Properties, LLC (which in turn owns limited partner units in a
number of publicly-traded limited partnerships), (ii) cash, (iii) IPLP's
rights under that certain Credit Agreement among IPLP, Lehman Syndicated
Loan Funding Trust, as syndication agent, First Union National Bank, as
administrative agent, and the lenders from time to time parties thereto,
(iv) approximately 10.2 million OP Units and (v) all residual rights under
the Assets (which have insignificant economic value).
The number of OP Units issued by the AIMCO Operating Partnership to
IPLP in the IPLP Exchange was calculated assuming an OP Unit value of
$37.75, the price of Class A common stock, par value $.01, of AIMCO ("AIMCO
Common Stock"), on September 30, 1998. The economic rights to the Assets
were valued by IPLP and the AIMCO Operating Partnership at approximately
$386.2 million, which resulted in the AIMCO Operating Partnership issuing
approximately 10.2 million OP Units to IPLP in exchange for the economic
rights to the Assets.
The summary description above of the IPLP Assignment Agreement is
qualified in its entirety by reference to Exhibit 10.2 attached hereto,
which is incorporated herein by reference.
ITEM 5. OTHER EVENTS.
Second Amended and Restated Merger Agreement
As previously announced, IPT and AIMCO entered into an Agreement and
Plan of Merger, dated as of October 1, 1998 (the "Original Merger
Agreement"), pursuant to which IPT was to be merged into AIMCO or a
subsidiary of AIMCO was to be merged into IPT, and on December 7, 1998, the
parties amended and restated the Original Merger Agreement. Due to the
proposal of new tax regulations, AIMCO and IPT executed a second amended
and restated agreement and plan of merger, dated as of January 22, 1999
(the "Merger Agreement"). The Merger Agreement was approved by the Board of
Trustees of IPT (with trustees nominated by AIMCO abstaining and one
trustee not nominated by AIMCO absent). The Merger Agreement did not
materially alter the rights or interest of the IPT shareholders. The
consideration IPT shareholders will receive in the Merger and the treatment
of distributions on common shares of beneficial interest, par value $.01
per share, of IPT ("IPT Common Shares"), is described below.
As of the effective time of the merger (the "Effective Time"), each
IPT Common Share outstanding immediately prior to the Effective Time and
which is not held by AIMCO, IPT or any of their subsidiaries or which are
not restricted shares of IPT will be converted into the right to receive,
at AIMCO's option, shares of AIMCO Common Stock, cash or a combination of
both (the "Merger Consideration"). As long as the merger is completed prior
to March 1, 1999, the Merger Consideration IPT shareholders will receive
for each IPT Common Share will be:
o shares of AIMCO Common Stock equal to (a) the stock percentage
elected by AIMCO multiplied by (b) the quotient of (i) the
total of (A) $13.28 minus (B) any per share extraordinary
distributions made on shares of IPT to maintain its
qualification as a REIT for Federal income tax purposes divided
by (ii) the AIMCO Exchange Value (as defined); plus
o cash in the amount of (a) the cash percentage elected by AIMCO
multiplied by (b) the total of (i) $13.25 minus (ii) any per
share extraordinary distributions made on shares of IPT to
maintain its qualifications as a REIT for Federal income tax
purposes plus (iii) cash equal to (A) $0.0036 multiplied by (B)
the number of days from and including January 1, 1999 through
and including the day before completion of the Merger.
If the Merger is competed on or after March 1, 1999, the stock
percentage will be 100% and no cash will be paid as Merger Consideration,
except in limited circumstances.
The AIMCO Exchange Value will be the lower of $36.8781, which was the
average sales price of shares of AIMCO Common Stock on the NYSE during the
last 10-NYSE trading days of 1998, or the average sales price of shares of
AIMCO Common Stock on the NYSE for the 10-NYSE trading days before the
special meeting of the IPT shareholders convened for purposes of voting on
the Merger (the "Special Meeting").
At least 12-NYSE trading days before the Special Meeting, AIMCO will
notify IPT of the percentage of the Merger Consideration to be paid in
cash. At least 12-NYSE trading days before the Special Meeting, IPT will
issue a press release to announce the percentage of the Merger
Consideration to be paid in cash and the percentage to be paid in stock.
IPT will not declare or pay any quarterly distributions on shares of
IPT. However, if the Merger is not completed prior to June 1, 1999, the
Board of Trustees of IPT may resume the payment of distributions, including
for the period during which distributions were not paid. Record holders of
IPT Common Shares will be entitled to a distribution for the period
beginning October 1, 1998 and ending on the date on which the Special
Meeting occurs with a record date on the day before the Special Meeting, at
IPT's current distribution rate. Furthermore, if the Effective Time has not
occurred on or before February 28, 1999 and if at any time thereafter AIMCO
declares any distribution on any AIMCO Common Stock, other than a regularly
quarterly distribution (the "Special AIMCO Distribution"), which has a
record date prior to the date on which the Effective Time occurs, then IPT
will promptly declare and pay a corresponding distribution in an amount
equal to the amount of such Special AIMCO Distribution, multiplied by
$13.28, divided by $36.8781, which was the average price of a share of
AIMCO Common Stock during the last ten NYSE-trading days of 1998.
On January 22, 1999, AIMCO also executed an irrevocable proxy (the
"Proxy") in favor of James A. Aston, Andrew L. Farkas and Frank M. Garrison
to vote all IPT Common Shares held by AIMCO at all meetings of IPT
shareholders, and in every written consent in lieu of such meetings, in
favor of approval of the Merger, the Merger Agreement and the transactions
contemplated thereby and any matter that could reasonably be expected to
facilitate the Merger. On that same day, AIMCO and James A. Aston, Andrew
L. Farkas and Frank M. Garrison executed a Shareholders' Agreement (the
"Shareholders' Agreement"), pursuant to which AIMCO agreed that following
certain terminations of the Merger Agreement vote its IPT Common Shares in
favor of the Continuing Trustees or their designees at the first two annual
meetings following such termination.
On December 7, 1998, IPT's bylaws were amended and restated to
clarify certain ambiguities (the "Third Amended and Restated Bylaws of
IPT").
The summary description above of the Merger Agreement is qualified in
its entirety by reference to Exhibit 2.2, attached hereto, which is
incorporated herein by reference. The Proxy, the Shareholders' Agreement
and Third Amended and Restated Bylaws of IPT are attached as Exhibits 99.3,
99.4 and 3.3, respectively.
Economic Rights Assignment
In June 1998, AIMCO Operating Partnership entered into seven separate
Purchase and Sale Agreements with affiliates of Realty Investment Co. to
acquire seven multifamily residential properties. On October 16, 1998,
these properties were acquired by newly formed subsidiaries of AIMCO
Operating Partnership (the "Subsidiary Partnerships") for a purchase price
of approximately $41.8 million (exclusive of certain transaction costs),
consisting of approximately $16.8 million in cash and the assumption of
approximately $25 million in mortgage indebtedness.
IPLP provided approximately $17.1 million to AIMCO which amount was
used to fund AIMCO Operating Partnership's capital contribution to the
Subsidiary Partnerships. In consideration of such action, AIMCO Operating
Partnership assigned all of its right, title and interest in and to the
profits, distributions, losses, and all other economic rights arising out
of its limited partnership interest in the Subsidiary Partnerships to IPLP
(the "Assignment Agreement").
The seven garden-style apartment communities are located in three
states, have an average age of 14 years and contain 1,353 apartment units.
Five of the apartment communities are located in Florida, with 448 units in
Jacksonville, 208 units in Daytona Beach, 120 units in Melbourne and 216
units in Palm Bay. One apartment community with 137 units is located in
Hemet, California and one apartment community with 224 units is located in
Stone Mountain, Georgia.
The summary description above of the Assignment Agreement is
qualified in its entirety by reference to Exhibit 10.1, attached hereto,
which is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of
October 1, 1998, by and between Apartment
Investment and Management Company and Insignia
Properties Trust. (1)
2.2* Second Amended and Restated Agreement and Plan of
Merger, dated as of January 22, 1999, by and
between Apartment Investment and Management
Company, and Insignia Properties Trust.
3.2 Second Amended and Restated Bylaws of Insignia
Properties Trust, dated October 2, 1998. (1)
3.3* Third Amended and Restated Bylaws of Insignia
Properties Trust, dated December 7, 1998.
10.1* Amended and Restated Assignment and Assumption
Agreement, dated as of December 7, 1998, by and
between Insignia Properties, L.P. and AIMCO
Properties, L.P.
99.1 Irrevocable Limited Proxy, dated October 1, 1998,
granted by Apartment Investment and Management
Company to Andrew L. Farkas, James A. Aston and
Frank M. Garrison. (1)
99.2 Shareholder's Agreement, dated October 1, 1998,
among Apartment Investment and Management Company,
Andrew L. Farkas, James A. Aston and Frank M.
Garrison. (1)
99.3* Irrevocable Limited Proxy, dated January 22, 1999,
granted by Apartment Investment and Management
Company to Andrew L. Farkas, James A. Aston and
Frank M. Garrison.
99.4* Shareholders' Agreement, dated January 22, 1999, by
and between Apartment Investment and Management
Company and Andrew L. Farkas, James A. Aston and
Frank M. Garrison.
99.5* Joint Press Release of Apartment Investment and
Management Company and Insignia Properties Trust,
dated January 29, 1999.
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* Filed herewith.
(1) Filed as an exhibit to IPT's Form 8-K dated October 1, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
INSIGNIA PROPERTIES TRUST
By: /s/ Patrick J. Foye
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Patrick Foye,
Executive Vice President
Dated: February 11, 1999
EXHIBIT INDEX
EXHIBIT
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2.1 Agreement and Plan of Merger, dated as of
October 1, 1998, by and between Apartment
Investment and Management Company and Insignia
Properties Trust. (1)
2.2* Second Amended and Restated Agreement and Plan of
Merger, dated as of January 22, 1999, by and
between Apartment Investment and Management Company
and Insignia Properties Trust.
3.2 Second Amended and Restated Bylaws of Insignia
Properties Trust, dated October 2, 1998. (1)
3.3* Third Amended and Restated Bylaws of Insignia
Properties Trust, dated December 7, 1998.
10.1* Amended and Restated Assignment and Assumption
Agreement, dated as of December 7, 1998, by and
between Insignia Properties, L.P. and AIMCO
Properties, L.P.
99.1 Irrevocable Limited Proxy, dated October 1, 1998,
granted by Apartment Investment and Management
Company to Andrew L. Farkas, James A. Aston and
Frank M. Garrison. (1)
99.2 Shareholder's Agreement, dated October 1, 1998,
among Apartment Investment and Management Company,
Andrew L. Farkas, James A. Aston and Frank M.
Garrison. (1)
99.3* Irrevocable Limited Proxy, dated January 22, 1998,
granted by Apartment Investment and Management
Company to Andrew L. Farkas, James A. Aston and
Frank M. Garrison.
99.4* Shareholders' Agreement, dated January 22, 1999, by
and between Apartment Investment and Management
Company and Andrew L. Farkas, James A. Aston and
Frank M. Garrison.
99.5* Joint Press Release of Apartment Investment and
Management
Company and Insignia Properties Trust, dated
January 29,
1999.
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* Filed herewith.
(1) Filed as an exhibit to IPT's Form 8-K dated October 1, 1998.
EXHIBIT 2.2
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SECOND AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
and
INSIGNIA PROPERTIES TRUST
Dated as of January 22, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I
THE MERGER...........................................................3
Section 1.1 The Merger..........................................3
Section 1.2 Effects of the Merger...............................3
Section 1.3 Effective Time of the Merger. ......................3
ARTICLE II
TREATMENT OF SHARES..................................................4
Section 2.1 Effect of the Merger on Outstanding Shares..........4
Section 2.2 Surrender of Certificates...........................7
Section 2.3 Closing of Transfer Books; Etc. ...................9
Section 2.4 No Fractional Shares................................9
Section 2.5 No Other Rights. .................................10
ARTICLE III
THE CLOSING.........................................................10
Section 3.1 Closing............................................10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IPT...............................11
Section 4.1 Organization and Qualification of IPT..............11
Section 4.2 Organization and Qualification of IPLP.............11
Section 4.3 Capitalization.....................................11
Section 4.4 Authority; Non-Contravention.......................12
Section 4.5 Tax Matters........................................12
Section 4.6 Vote Required......................................13
Section 4.7 AMIT Merger........................................13
Section 4.8 Opinion of Financial Advisor.......................13
Section 4.9 Brokers............................................13
Section 4.10 Absence of Inducement..............................13
Section 4.11 Restricted IPT Common Shares.......................14
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AIMCO.............................14
Section 5.1 Organization and Qualification.....................14
Section 5.2 Capitalization.....................................14
Section 5.3 Authority; Non-Contravention; Required Filings.....16
Section 5.4 Reports and Financial Statements...................17
Section 5.5 Absence of Certain Changes or Events...............17
Section 5.6 Registration Statement, Information
Statement/Prospectus and Schedule 13E-3............17
Section 5.7 No Vote Required...................................18
Section 5.8 Tax Matters........................................18
Section 5.9 Brokers............................................19
Section 5.10 Absence of Inducement..............................19
Section 5.11 Conduct of IPT's Business..........................20
Section 5.12 Authority; Non-Contravention; Required Filings.....20
ARTICLE VI
ADDITIONAL AGREEMENTS...............................................20
Section 6.1 IPT and IPLP Distributions.........................20
Section 6.2 Registration Statement, Information
Statement/Prospectus and Schedule 13E-3............22
Section 6.3 Regulatory Matters.................................23
Section 6.4 Shareholder Approval. .............................23
Section 6.5 Vote of IPT Common Shares Owned by AIMCO...........24
Section 6.6 Public Announcements...............................24
Section 6.7 Expenses...........................................25
Section 6.8 Further Assurances.................................25
Section 6.9 Transfer Taxes.....................................25
Section 6.10 IPT Trustees and Officers..........................25
Section 6.11 Modification of Form of Transaction. ..............26
Section 6.12 Indemnification....................................27
Section 6.13 Insurance. ........................................29
Section 6.14 Conduct of IPT's Business Pending the
Effective Time.....................................29
ARTICLE VII
CONDITIONS..........................................................31
Section 7.1 Conditions to Each Party's Obligation to
Effect the Merger..................................31
Section 7.2 Additional Conditions to Obligation of IPT to
Effect the Merger..................................31
Section 7.3 Additional Conditions to Obligation of AIMCO
to Effect the Merger...............................33
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER...................................34
Section 8.1 Termination........................................34
Section 8.2 Effect of Termination..............................35
Section 8.3 Amendment..........................................38
Section 8.4 Waiver.............................................39
ARTICLE IX
GENERAL PROVISIONS..................................................39
Section 9.1 Survival of Representations, Warranties,
Covenants and Agreements. .........................39
Section 9.2 Notices. .........................................39
Section 9.3 Adjustment for Dilution............................40
Section 9.4 Entire Agreement...................................40
Section 9.5 Assignment. ......................................41
Section 9.6 Governing Law......................................41
Section 9.7 Interpretation. ..................................41
Section 9.8 Counterparts; Effect...............................41
Section 9.9 Parties' Interest..................................41
Section 9.10 Enforcement........................................41
Section 9.11 Severability.......................................42
Section 9.12 Letter Agreement...................................42
Section 9.13 Knowledge. .......................................42
Section 9.14 Breaches. ........................................42
INDEX OF DEFINED TERMS Page
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Agreement............................................................1
AIMCO................................................................1
AIMCO Benefit Plans.................................................15
AIMCO Board..........................................................2
AIMCO Class B Common Stock..........................................14
AIMCO Collar Price...................................................4
AIMCO Committee......................................................2
AIMCO Common Stock...................................................4
AIMCO Exchange Value.................................................4
AIMCO Material Adverse Effect.......................................14
AIMCO OP.............................................................1
AIMCO Preferred Stock...............................................14
AIMCO Reference Period...............................................4
AIMCO Reference Price................................................4
AIMCO REIT Opinion..................................................33
AIMCO Reorganization Opinion........................................33
AIMCO Required Filings..............................................16
AIMCO Restricted Shares..............................................7
AIMCO SEC Reports...................................................17
AIMCO Termination Reference Price...................................35
AIMCO Termination Share Value.......................................35
AIMCO-nominated Trustees.............................................2
Alternative Proposal................................................34
AMIT.................................................................1
AMIT Merger..........................................................1
Cash Amount..........................................................5
Cash Election Notice.................................................7
Cash Percentage......................................................6
Certificate..........................................................6
Closing.............................................................10
Closing Date........................................................10
Code.................................................................2
Common Partnership Unit.............................................36
Continuing Trusteeship..............................................25
Control.............................................................36
Controlled AIMCO Entity.............................................36
Controlled IPT Entity...............................................36
Conversion Ratio.....................................................5
Covered IPT Assets..................................................36
Covered Third-Party Assets..........................................36
Effective Time.......................................................4
Effective Time Charter...............................................3
Excess Distribution Amount..........................................22
Exchange Act........................................................16
Exchange Fund........................................................7
Executive Committee..................................................2
First Amended and Restated Agreement.................................1
Financial Institution...............................................24
GAAP................................................................17
Governmental Authority..............................................17
HUD.................................................................17
IFG..................................................................1
IFG Agreement........................................................1
IFG Merger...........................................................1
Indemnitee..........................................................29
Information Statement/Prospectus....................................18
IPLP................................................................11
IPLP Limited Partnership Agreement..................................11
IPT..................................................................1
IPT Board............................................................2
IPT Bylaws...........................................................2
IPT Common Shares....................................................2
IPT Declaration.....................................................11
IPT Exchange Value...................................................5
IPT Final Distribution Amount.......................................20
IPT Meeting.........................................................12
IPT Meeting Date....................................................23
IPT Preferred Shares................................................11
IPT Share Plan.......................................................7
IPT Shareholders.....................................................2
IPT Shareholders' Approval..........................................12
IPT Termination Share Value.........................................37
IPT Unwind Consideration............................................37
Law.................................................................16
Lehman Opinion.......................................................2
Losses..............................................................27
MCAA.................................................................3
MGCL.................................................................3
Merger...............................................................2
Merger Consideration.................................................6
NYSE.................................................................4
Original Agreement...................................................1
Outstanding IPT Common Shares........................................6
Paying Agent.........................................................7
Person...............................................................5
Proxyholders........................................................24
Registration Statement..............................................17
REIT.................................................................2
Restricted Share.....................................................7
Schedule 13E-3......................................................18
SEC.................................................................17
Securities Act......................................................16
Special AIMCO Distribution..........................................22
Status Requirements.................................................13
Stock Percentage.....................................................5
Subsidiary...........................................................5
Superior Proposal...................................................35
Surviving Entity.....................................................3
Tax Return..........................................................12
Taxes...............................................................12
Termination Date....................................................37
Third-Party Unwind Consideration....................................37
Third-Party Unwind Price............................................37
TPI..................................................................1
Transfer Taxes......................................................25
Violation...........................................................16
Voting Debt.........................................................11
SECOND AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
SECOND AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), dated as of January 22 , 1999, by and between Apartment
Investment and Management Company, a Maryland corporation ("AIMCO") and
Insignia Properties Trust, a Maryland real estate investment trust ("IPT").
WHEREAS, AIMCO and IPT have previously entered into an Agreement
and Plan of Merger, dated as of October 1, 1998 (the "Original Agreement"),
and AIMCO, IPT and TPI Acquisition Trust, a Maryland real estate investment
trust ("TPI"), entered into an Amended and Restated Agreement and Plan of
Merger, dated as of December 7, 1998 (the "First Amended and Restated
Agreement"), and AIMCO and IPT now wish to amend and restate the Original
Agreement and the First Amended and Restated Agreement in their entirety,
with the effect of superseding and extinguishing any obligations under the
Original Agreement or under the First Amended and Restated Agreement and
TPI has consented to such amendment and restatement;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
July 18, 1997, by and among Angeles Mortgage Investment Trust, an
unincorporated California business trust ("AMIT"), IPT, Insignia Financial
Group, Inc., a Delaware corporation ("IFG"), and MAE GP Corporation, a
Delaware corporation, AMIT merged with and into IPT on September 17, 1998,
with IPT being the surviving entity (the "AMIT Merger");
WHEREAS, pursuant to an Amended and Restated Agreement and Plan of
Merger, dated as of May 26, 1998 (the "IFG Agreement"), by and among AIMCO,
AIMCO Properties, L.P., a Delaware limited partnership ("AIMCO OP"), IFG
and Insignia/ESG Holdings, Inc., a Delaware corporation, IFG merged with
and into AIMCO on October 1, 1998, with AIMCO being the surviving entity
(the "IFG Merger");
WHEREAS, the IFG Agreement requires AIMCO to propose to acquire
IPT by merger and to use its reasonable best efforts to consummate such
merger within three months following the effective time of the IFG Merger,
and the performance of AIMCO's obligations under this Agreement, if it uses
its reasonable best efforts to consummate such merger within such period,
will constitute AIMCO's performance of such obligations under the IFG
Agreement;
WHEREAS, it is the intention of the parties that IPT merge with
and into AIMCO, with AIMCO being the surviving entity (the "Merger"), on
the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Trustees of IPT (the "IPT Board") received
the written opinion of Lehman Brothers Inc., dated October 1, 1998 (the
"Lehman Opinion"), that the amount of the Merger Consideration (as defined
in Section 2.1(b)) is fair from a financial point of view to the holders
(the "IPT Shareholders") of common shares of beneficial interest, par value
$.01 per share, of IPT ("IPT Common Shares"), other than IFG and AIMCO and
their respective Subsidiaries (as defined in Section 2.1(a));
WHEREAS, the Board of Directors of AIMCO (the "AIMCO Board") and
the IPT Board approved the Merger, upon the terms and subject to the
conditions set forth in the Original Agreement;
WHEREAS, (i) Ronald Uretta and Ronald J. Consiglio resigned from
the IPT Board, (ii) the size of the IPT Board was increased to eleven and
each of the trustee candidates designated by AIMCO listed on Schedule
6.10-1 hereto (together with their successors, the "AIMCO-nominated
Trustees") was elected as a trustee of IPT, (iii) the officer candidates
designated by AIMCO and listed on Schedule 6.10-2 hereto were appointed to
the respective positions indicated on such Schedule, (iv) a committee of
the IPT Board, consisting of two AIMCO-nominated Trustees (the "AIMCO
Committee"), was formed and then authorized and empowered to act to the
extent set forth in the Third Amended and Restated Bylaws of IPT (the "IPT
Bylaws"), (v) the Continuing Trustees (as defined in the IPT Bylaws) were
authorized and empowered to act to the extent set forth in the IPT Bylaws
(the names of the persons who currently are Continuing Trustees are set
forth on Schedule 6.10-3) and (vi) an executive committee of the IPT Board,
consisting of the AIMCO-nominated Trustees listed on Schedule 6.10-4 (the
"Executive Committee"), was formed and then authorized and empowered to act
to the extent set forth in the IPT Bylaws; and
WHEREAS, the IPT Board (including all of the Continuing Trustees
and with the AIMCO-nominated trustees abstaining) and the AIMCO Board have
each approved this Agreement, as an amendment and restatement of the
Original Agreement and the First Amended and Restated Agreement; and
WHEREAS, AIMCO intends that, following the Merger, it shall
continue to be subject to taxation as a real estate investment trust (a
"REIT") within the meaning of the Internal Revenue Code of 1986, as amended
(the "Code").
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE MERGER
Section 1. The Merger.
Upon the terms and subject to the conditions of this Agreement, at
the Effective Time (as defined in Section 1.3), IPT shall be merged with
and into AIMCO in accordance with the laws of the State of Maryland, and
the separate existence of IPT shall cease. AIMCO shall be the surviving
entity in the Merger (hereinafter sometimes referred to herein as the
"Surviving Entity") and shall continue its corporate existence under the
laws of the State of Maryland.
Section 2. Effects of the Merger.
(a) At the Effective Time, (i) the charter of AIMCO, as in effect
immediately prior to the Effective Time (the "Effective Time Charter"),
shall be the charter of the Surviving Entity until thereafter amended as
provided by law and the Effective Time Charter, (ii) the by-laws of AIMCO,
as in effect immediately prior to the Effective Time, shall be the by-laws
of the Surviving Entity until thereafter amended as provided by law, the
Effective Time Charter and such by-laws and (iii) the directors and
officers of AIMCO immediately prior to the Effective Time shall be the
initial directors and officers, respectively, of the Surviving Entity.
(b) Subject to the foregoing, the additional effects of the Merger
shall be as provided in Section 3-114 of the Maryland General Corporation
Law (the "MGCL") and Section 8-501.1(n) of Title 8 of the Corporations and
Associations Article of the Annotated Code of Maryland (the "MCAA"). At the
Effective Time, all the properties, rights, privileges, powers and
franchises of IPT shall vest in the Surviving Entity, and all debts,
liabilities and duties of IPT shall become the debts, liabilities and
duties of the Surviving Entity.
Section 3. Effective Time of the Merger. On the Closing Date (as
defined in Section 3.1), articles of merger shall be executed and filed by
AIMCO and IPT with the State Department of Assessments and Taxation of
Maryland pursuant to the MGCL and the MCAA. The Merger shall become
effective as of the date and at such time as the articles of merger are
accepted for record by the State Department of Assessments and Taxation of
Maryland (the date and time the Merger becomes effective pursuant to MCAA
and the MGCL being referred to as the "Effective Time").
ARTICLE II
TREATMENT OF SHARES
Section 1. Effect of the Merger on Outstanding Shares.
(a) Definition. As used in this Agreement, the following terms
have the following meanings:
"AIMCO Collar Price" means $36.8781, which was the average price
(computed based on the sum of the daily high and low sales prices of AIMCO
Common Stock (as reported in The Wall Street Journal under the caption New
York Stock Exchange ("NYSE") Composite Transactions or, if not published
therein, in another authoritative source) divided by two) of a share of
AIMCO Common Stock during the ten consecutive NYSE trading day period ended
on and including December 31, 1998.
"AIMCO Common Stock" means the Class A Common Stock, par value
$.01 per share, of AIMCO.
"AIMCO Exchange Value" means the lesser of the AIMCO Collar
Price or the AIMCO Reference Price.
"AIMCO Reference Period" means the ten consecutive NYSE-trading
day period ending on and including the NYSE trading day immediately
preceding the IPT Meeting Date (as defined in Section 6.4).
"AIMCO Reference Price" means the average price (computed based on
the sum of the daily high and low sales prices of AIMCO Common Stock (as
reported in The Wall Street Journal under the caption NYSE Composite
Transactions, or, if not published therein, in another authoritative
source) divided by two) of a share of AIMCO Common Stock during the AIMCO
Reference Period.
"Cash Amount" means an amount equal to: (a) $13.25; plus (b) if
the Effective Time occurs on or after February 1 and on or before February
28, 1999, $.0036 multiplied by the number of days that have elapsed from
and including January 1, 1999 through and including the day immediately
preceding the Effective Time; minus (c) the Excess Distribution Amount.
"Cash Election Notice" is defined in Section 2.1(d).
"Cash Percentage" is defined in Section 2.1(c).
"Conversion Ratio" means the IPT Exchange Value divided by the
AIMCO Exchange Value.
"Excess Distribution Amount" is defined in Section 6.1(e).
"IPT Exchange Value" means (i) $13.28 minus (ii) the Excess
Distribution Amount.
"Person" means any individual, partnership, corporation, limited
liability company, association, joint stock company, trust, joint venture,
unincorporated organization and governmental entity or any department,
agency or political subdivision thereof.
"Stock Percentage" means a percentage equal to 100% minus the Cash
Percentage.
"Subsidiary" means, as to any Person, any other Person of which at
least a majority of the voting power represented by the outstanding shares
of capital stock or other voting securities or interests (including,
without limitation, general partner interests) having voting power under
ordinary circumstances to elect directors or similar members of the
governing body of such other Person shall at the time be held, directly or
indirectly, by such first Person, except that IPT shall not be considered,
for purposes of this Agreement, to be a Subsidiary of AIMCO.
(b) Merger Consideration. Subject to Section 2.1(d), as of the
Effective Time, by virtue of the Merger and without any action on the part
of any IPT Shareholder:
(i) Each IPT Common Share issued and outstanding
immediately prior to the Effective Time, other than IPT Common Shares
cancelled according to Section 2.1(b)(ii) ("Outstanding IPT Common
Shares"), shall be converted into and become the right to receive (x)
the number of shares of AIMCO Common Stock equal to the Stock
Percentage multiplied by the Conversion Ratio plus (y) an amount in
cash equal to the Cash Percentage multiplied by the Cash Amount ((x)
together with the right to receive cash in lieu of fractional
interests pursuant to Section 2.4 and (y), the "Merger
Consideration").
(ii) Each IPT Common Share owned, directly or indirectly,
by AIMCO, IPT or any of their respective subsidiaries immediately
prior to the Effective Time shall automatically be canceled and
retired and shall cease to exist, and no Merger Consideration or other
consideration shall be issued or delivered in exchange therefor.
(iii) All the Outstanding IPT Common Shares, when so
converted in accordance with this Section 2.1, shall no longer be
outstanding and shall automatically be canceled and retired and shall
cease to exist, and each holder of a certificate (a "Certificate")
which, immediately prior to the Effective Time, represented
Outstanding IPT Common Shares shall cease to have any rights with
respect thereto, except (i) the right to receive any dividend or other
distribution on IPT Common Shares with a record date prior to the
Effective Time and (ii) upon surrender of such Certificate, (x) the
right to receive the Merger Consideration and (y) to the extent the
Merger Consideration consists of AIMCO Common Stock, any dividend or
other distribution on the AIMCO Common Stock with a record date on or
after the date on which the Effective Time occurs and paid prior to
the time such Certificate is surrendered.
(c) Cash Election. Not later than the close of business on the
second NYSE trading day immediately preceding the first day of the AIMCO
Reference Period, AIMCO shall deliver to the Secretary of IPT an
irrevocable written notice (the "Cash Election Notice") in which AIMCO
specifies a percentage, from 0% to 100%, of the Merger Consideration to be
paid in cash (the "Cash Percentage"), subject to the proviso in Section
7.2(e). IPT shall, and AIMCO shall use its best efforts to cause IPT to,
issue, on the date the Cash Election Notice is required to be delivered,
via the Dow Jones News Service and PR Newswire, a press release announcing
the extent to which the Merger Consideration is to be paid in each of
shares of AIMCO Common Stock and cash. Notwithstanding the foregoing, if
(x) AIMCO fails to timely deliver the Cash Election Notice or (y) the
Effective Time is on or after March 1, 1999, then the Cash Percentage
shall, subject to the proviso in Section 7.2(e), equal 0%, regardless of
whether a Cash Election Notice had been previously properly delivered.
(d) Restricted IPT Common Shares.
(i) Treatment. Each restricted IPT Common Share awarded
under the Insignia Properties Trust 1997 Share Incentive Plan (the
"IPT Share Plan") which is outstanding and unvested at the Effective
Time (each a "Restricted Share") shall, by virtue of this Agreement
and without any further action of IPT, AIMCO or the holder of such
Restricted Share, be converted at the Effective Time into a number of
restricted shares of AIMCO Common Stock ("AIMCO Restricted Shares")
equal to the Conversion Ratio. Each such AIMCO Restricted Share shall
continue to have, and be subject to, the same terms and conditions
(including rights to Dividend Equivalents (as defined in the IPT Share
Plan)) set forth in the IPT Share Plan and the applicable restricted
share agreement, each as in effect immediately prior to the Effective
Time.
(ii) Registration. AIMCO shall (A) cause the AIMCO
Restricted Shares issued pursuant to Section 2.1(d)(i) to be covered
by an effective registration statement on Form S-8 (or any successor
or other appropriate forms) and (B) use its reasonable best efforts to
maintain the effectiveness of such registration statement (and
maintain the current status of the prospectus contained therein) for
so long as the AIMCO Restricted Shares remain outstanding.
Section 2. Surrender of Certificates.
(a) AIMCO shall deposit, or shall cause to be deposited, at the
Effective Time with the paying agent selected by AIMCO (the "Paying Agent")
(i) certificates representing shares of AIMCO Common Stock and (ii) funds
as necessary to make issuances or payments of the Merger Consideration
(including cash to be paid in lieu of fractional interests pursuant to
Section 2.4) (such certificates and funds being hereinafter referred to as
the "Exchange Fund"). If the Merger Consideration includes AIMCO Common
Stock, and any dividend or other distribution on the AIMCO Common Stock
with a record date on or after the Effective Time and paid prior to the
time any Certificate is surrendered, AIMCO will deposit such amounts in the
Exchange Fund until six months after the Effective Time. Out of the
Exchange Fund, the Paying Agent shall make, pursuant to irrevocable
instructions from AIMCO, the issuances and payments referred to in Sections
2.1(b) and 2.4, and the Exchange Fund shall not be used for any other
purpose. The Paying Agent may invest portions of the Exchange Fund as AIMCO
may direct, provided that such investments be in obligations of, or
guaranteed by, the United States of America, in commercial paper
obligations receiving the highest rating from either Moody's Investors
Service or Standard & Poor's Corporation or in certificates of deposit,
bank repurchase agreements or bankers' acceptances of commercial banks with
capital exceeding $100,000,000. Any net profit resulting from, or interest
or income produced by, such investments shall be payable to AIMCO. AIMCO
shall replace any monies lost through any investment made pursuant to this
Section 2.2(a) upon request therefor by the Paying Agent.
(b) As soon as practicable after the Effective Time, AIMCO shall
cause the Paying Agent to mail to each holder of record of an Outstanding
IPT Common Share: (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon actual delivery of the Certificates to the Paying
Agent); and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate to the Paying Agent for exchange (or to such other agent or
agents as may be appointed by AIMCO), together with a duly executed letter
of transmittal and such other documents as the Paying Agent shall require,
the holder of such Certificate shall be entitled to receive, in exchange
therefor: (A) a certificate or certificates representing that number of
whole shares of AIMCO Common Stock which such holder has the right to
receive pursuant to the provisions of Section 2.1(b), and cash in lieu of
fractional interests pursuant to Section 2.4; and (B) the amount of cash
which such holder has the right to receive pursuant to the provisions of
Section 2.1(b). If payment is to be made to a Person other than the one in
whose name a surrendered Certificate is registered, it shall be a condition
of receipt of the Merger Consideration that the Certificate so surrendered
be properly endorsed or otherwise in proper form for transfer and that the
Person requesting such payment either pay any transfer or other taxes
required by reason of the payment to a Person other than the registered
holder of the Certificate surrendered or establish to the satisfaction of
the Paying Agent that such tax has been paid or is not applicable. Until
surrendered in accordance with the provisions of this Section 2.2, after
the Effective Time, each Certificate shall represent for all purposes only
the right to receive the portion of the Exchange Fund that corresponds to
the amount in cash and number of shares of AIMCO Common Stock such
Certificate represents.
(c) Any portion of the Exchange Fund that remains unclaimed six
months after the Effective Time shall be returned to AIMCO upon its request
made to the Paying Agent, after which time the holder of any unsurrendered
Certificate shall look only to AIMCO for payment of (i) the Merger
Consideration and (ii) to the extent the Merger Consideration consists of
AIMCO Common Stock, any dividends and other distributions on the AIMCO
Common Stock with a record date on or after the Effective Time and paid
prior to the time such Certificate is surrendered. AIMCO shall not be
liable to any Person for any funds delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law.
Section 3. Closing of Transfer Books; Etc. From and after the
Effective Time, the share transfer books of IPT shall be closed, and no
registration of any transfer of any Outstanding IPT Common Shares shall
thereafter be made on the records of IPT. If, after the Effective Time, any
Certificate is presented to AIMCO for any reason, it shall be canceled, and
each Outstanding IPT Common Share represented thereby shall be exchanged
for (i) the Merger Consideration and (ii) to the extent the Merger
Consideration consists of AIMCO Common Stock, any dividend or other
distribution on the AIMCO Common Stock with a record date on or after the
Effective Time and paid prior to the time the Certificate is surrendered.
Any shares of AIMCO Common Stock issued in the Merger shall be issued as
of, and be deemed to be outstanding as of, the Effective Time. AIMCO shall
cause all such shares of AIMCO Common Stock issued pursuant to the Merger
to be duly authorized, validly issued, full paid and nonassessable and not
subject to preemptive rights. In the event any Certificate(s) shall have
been lost, stolen or destroyed, upon the making of any affidavit of that
fact by the IPT Shareholder claiming such Certificate(s) to be lost, stolen
or destroyed and, if reasonably required by AIMCO or the Paying Agent, upon
the posting by such IPT Shareholder of a bond in such amount as reasonably
determined as indemnity against any claim that may be made against either
of them with respect to such Certificate(s), the Paying Agent shall issue
the Merger Consideration in respect of each Outstanding IPT Common Share
represented by such lost, stolen or destroyed Certificate(s). If the Merger
Consideration consists of AIMCO Common Stock, appropriate procedures shall
be established by AIMCO and the Paying Agent so that each holder of a
Certificate at the Effective Time shall be entitled to vote on all matters
subject to the vote of holders of AIMCO Common Stock with a record date on
or after the Effective Time, whether or not such Certificate holder shall
have surrendered Certificates in accordance with the provisions of this
Agreement. For purposes of the immediately preceding sentence, AIMCO may
rely conclusively on the shareholder records of IPT in determining the
identity of, and the number of Outstanding IPT Common Shares held by, each
holder of a Certificate at the Effective Time.
Section 4. No Fractional Shares.
(a) No scrip or fractional share certificate for AIMCO Common
Stock will be issued upon the surrender for exchange of Certificates, and
an outstanding fractional share interest will not entitle the owner thereof
to vote, to receive dividends or to any rights of a stockholder of AIMCO or
of the Surviving Corporation with respect to such fractional share
interest.
(b) In lieu of any fractional shares of AIMCO Common Stock, each
holder of an IPT Common Share that otherwise would be entitled to a
fractional share of AIMCO Common Stock, shall receive a cash payment in
lieu of such fractional share of AIMCO Common Stock equal to such
shareholder's proportionate interest in a share of AIMCO Common Stock
multiplied by the AIMCO Reference Price, determined as of the Effective
Time.
Section 5. No Other Rights. Upon consummation of the Merger, the
holder of a Certificate at and after the Effective Time shall have no
rights under this Agreement with respect to the Outstanding IPT Common
Shares represented thereby other than the right to receive (a) the Merger
Consideration, (b) to the extent the Merger Consideration consists of AIMCO
Common Stock, any dividend or other distribution on the AIMCO Common Stock
with a record date on or after the Effective Time and paid prior to the
time such Certificate is surrendered and (c) any unpaid dividend or other
distribution on IPT Common Shares with a record date prior to the Effective
Time. Nothing in this Agreement supersedes the right of the IPT
Shareholders to enforce Section 5.6 for the period provided in Section 9.1.
ARTICLE III
THE CLOSING
Section 1. Closing. The closing of the Merger (the "Closing")
shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom
LLP, 919 Third Avenue, New York, New York 10022, at 12:00, noon, local
time, on the business day on which all of the conditions set forth in
Article VII hereof are first fulfilled or have been waived, provided that
all of the conditions set forth in Article VII hereof continue to be so
satisfied or waived on such day, and if not so satisfied or waived, the
Closing shall be automatically extended from time to time until the first
subsequent day on which all such conditions are again so satisfied or
waived, subject, however, to Article VIII hereof, or shall take place at
such other time, date and place as AIMCO and IPT shall mutually agree (the
"Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF IPT
IPT represents and warrants to AIMCO as follows:
Section 1. Organization and Qualification of IPT. As of October 1,
1998, IPT was a real estate investment trust which had been duly formed and
was validly existing and in good standing under the laws of the State of
Maryland. IPT has furnished to AIMCO true and complete copies of IPT's
Declaration of Trust (the "IPT Declaration") and the IPT Bylaws, each as is
in effect on the date of the Original Agreement.
Section 2. Organization and Qualification of IPLP. As of October
1, 1998, Insignia Properties, L.P. ("IPLP") was a limited partnership which
had been duly formed and was validly existing and in good standing under
the laws of the State of Delaware on such date. IPT has furnished to AIMCO
true and complete copies of the Fourth Amended and Restated Agreement of
Limited Partnership of IPLP as in effect on the date of the Original
Agreement (the "IPLP Limited Partnership Agreement"). As of October 1, 1998
and prior to the effective time of the IFG Merger, the sole general partner
of IPLP was IPT, and the limited partners of IPLP were IFG and Insignia
Capital Corporation, a Delaware corporation (which was a wholly-owned
Subsidiary of IFG).
Section 3. Capitalization. At the date hereof, the authorized
shares of beneficial interest of IPT consist of 400,000,000 IPT Common
Shares and 100,000,000 preferred shares of beneficial interest, par value
$.01 per share, of IPT ("IPT Preferred Shares"). At the date hereof,
23,484,538 IPT Common Shares are issued and outstanding, and (a) no IPT
Common Shares are held by IPT's Subsidiaries, (b) no IPT Preferred Shares
are issued and (c) no bonds, debentures, notes or other indebtedness having
the right to vote (or convertible into securities having the right to vote)
on any matters on which shareholders of IPT may vote ("Voting Debt") were
issued or outstanding. At the date hereof, all outstanding IPT Common
Shares are validly issued, fully paid and nonassessable and are not subject
to preemptive rights. On the date hereof, there are no outstanding
subscriptions, calls, options, contracts, voting trusts, proxies or other
commitments, understandings, restrictions, arrangements, rights or
warrants, including any right of conversion or exchange under any
outstanding security, instrument or other agreement, obligating IPT or IPLP
to issue, deliver or sell, or cause to be issued, delivered or sold,
additional IPT Common Shares, IPT Preferred Shares or other ownership
interests in IPT or IPLP or any Voting Debt of IPT or IPLP or obligating
IPT or IPLP to grant, extend or enter into any such agreement or
commitment.
Section 4. Authority; Non-Contravention.
(a) Authority. IPT had, as of October 1, 1998, and has, as of the
date hereof, all requisite trust power and authority to enter into the
Original Agreement and this Agreement, respectively, and, subject to
obtaining the affirmative vote of a majority of the IPT Common Shares
outstanding on the record date for the meeting of IPT Shareholders for the
purpose of voting on this Agreement, the Merger and the other transactions
contemplated hereby, including adjournments and postponements thereof (the
"IPT Meeting"), at which such vote is taken (the "IPT Shareholders'
Approval"), to consummate the transactions contemplated thereby and hereby.
The execution and delivery of the Original Agreement and the consummation
by IPT of the transactions contemplated thereby have been duly authorized
by the IPT Board. The execution and delivery of this Agreement and the
consummation by IPT of the transactions contemplated hereby have been duly
authorized by the IPT Board (including all of the Continuing Trustees and
with the AIMCO-nominated Trustees abstaining), which constitutes all
necessary trust action on the part of IPT, subject to obtaining the IPT
Shareholders' Approval. The Original Agreement and this Agreement each have
been duly and validly executed and delivered by IPT and, assuming the due
authorization, execution and delivery hereof by AIMCO, this Agreement
constitutes the legal, valid and binding obligation of IPT enforceable
against IPT in accordance with its terms.
(b) Non-Contravention. As of October 1, 1998, the execution and
delivery of the Original Agreement by IPT did not, and as of the date
hereof, the execution and delivery of this Agreement, will not, in any
respect, violate, conflict with or result in a breach of any provision of
the IPT Declaration or the IPT Bylaws. Subject to obtaining the IPT
Shareholders' Approval, the consummation of the transactions contemplated
hereby will not, in any respect, violate, conflict with or result in a
breach of any provision of the IPT Declaration or the IPT Bylaws.
Section 5. Tax Matters. "Taxes," as used in this Agreement, unless
otherwise stated, means any and all Federal, state, local and foreign
taxes, including, without limitation, income, sales and use, withholding,
transfer, franchise, real and personal property, employment and payroll
taxes, together with any interest, penalties and additions thereto. "Tax
Return," as used in this Agreement, means any report, return or other
information required to be supplied to any person with respect to Taxes.
(a) REIT Classification. At all times from the date of its
organization to and including October 1, 1998, IPT has been organized and
operated in conformity with Sections 856-860 of the Code (the "Status
Requirements"), and its method of operation during such period satisfied
the Status Requirements. The consummation by IPT of the transactions
contemplated by the Original Agreement and the compliance with or
fulfillment of the terms and provisions thereof by IPT would not have
adversely affected the qualification of IPT as a REIT for its taxable year
ending at the Effective Time.
(b) Subchapter C Earnings and Profits. As of October 1, 1998, IPT
did not have any earnings and profits in excess of $1 million accumulated
in any non-REIT year within the meaning of Section 857 of the Code,
including as a result of the AMIT Merger.
Section 6. Vote Required. The IPT Shareholders' Approval is the
only vote of the holders of any class of any outstanding shares of
beneficial interest of IPT that is required to approve this Agreement, the
Merger and the other transactions contemplated hereby.
Section 7. AMIT Merger. AMIT was merged with and into IPT on
September 17, 1998.
Section 8. Opinion of Financial Advisor. On October 1, 1998, the
IPT Board received the Lehman Opinion, which opines that the Merger
Consideration is fair from a financial point of view to the holders of IPT
Common Shares other than IFG and AIMCO and their respective Subsidiaries.
Section 9. Brokers. As of October 1, 1998, except for Lehman
Brothers Inc., no broker, finder or investment banker is entitled to any
broker's, finder's or other fee or commission in connection with the Merger
or the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of IPT.
Section 10. Absence of Inducement. In entering into this
Agreement, IPT has not been induced by, or relied upon, any
representations, warranties, or statements by AIMCO not set forth or
referred to in this Agreement, the schedules hereto or the other documents
required to be delivered hereby, whether or not such representations,
warranties, or statements have actually been made, in writing or orally;
and IPT acknowledges that, in entering into this Agreement, AIMCO has been
induced by and relied upon the representations and warranties of IPT herein
set forth and in the other documents required to be delivered hereby. IPT
made its own investigation of AIMCO prior to the execution of this
Agreement and has not been induced by or relied upon any representations,
warranties or statements as to the advisability of entering into this
Agreement other than as set forth above or in the AIMCO SEC Reports (as
defined in Section 5.4).
Section 11. Restricted IPT Common Shares. There will not be more
than 450,000 Restricted Shares outstanding at the Effective Time.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AIMCO
AIMCO represents and warrants to IPT as follows:
Section 1. Organization and Qualification. As of October 1, 1998,
AIMCO was, and as of the date hereof AIMCO is, a corporation duly
organized, validly existing and in good standing under the laws of the
State of Maryland. As of October 1, 1998 AIMCO was, and as of the date
hereof AIMCO, is duly qualified and in good standing to do business in each
jurisdiction where such qualification is required, other than in such
jurisdictions where the failure to so qualify would not have, individually
or in the aggregate, a material adverse effect on the business, assets,
financial condition, results of operations or prospects of AIMCO and its
Subsidiaries taken as a whole (an "AIMCO Material Adverse Effect"). As of
October 1, 1998, AIMCO had and, as of the date hereof AIMCO has, all
requisite corporate power and authority, and, as of October 1, 1998, had
and, as of the date hereof, AIMCO has been duly authorized by all necessary
approvals and orders, to own, lease and operate its assets and properties
to the extent owned, leased and operated and to carry on it business as it
was then being conducted.
Section 2. Capitalization.
(a) As of October 1, 1998, the authorized stock of AIMCO consisted
of 486,027,500 shares of AIMCO Common Stock, 262,500 shares of Class B
Common Stock, par value $.01 per share ("AIMCO Class B Common Stock"), and
24,460,000 shares of Preferred Stock, par value $.01 per share ("AIMCO
Preferred Stock"). As of October 1, 1998, (i) 47,982,057 shares of AIMCO
Common Stock were issued and outstanding, (ii) 162,500 shares of AIMCO
Class B Common Stock were issued and outstanding, (iii) 22,345,921 shares
of AIMCO Preferred Stock were issued and outstanding (including 750,000
shares of AIMCO Class B Cumulative Convertible Preferred Stock, par value
$.01 per share; 2,400,000 shares of AIMCO 9% Class C Cumulative Preferred
Stock, par value $.01 per share; 4,200,000 shares of AIMCO 8.75% Class D
Cumulative Preferred Stock, par value $.01 per share; 8,945,921 shares of
AIMCO Class E Cumulative Convertible Preferred Stock, par value $.01 per
share; 4,050,000 shares of AIMCO Class G Preferred Stock, par value $.01
per share; and 2,000,000 shares of AIMCO Class H Preferred Stock, par value
$.01 per share), (iv) 5,362,879 shares of AIMCO Common Stock were reserved
for issuance upon the exchange of units of limited partnership in AIMCO OP,
(v) 5,115,246 shares of AIMCO Common Stock were reserved for issuance
pursuant to the AIMCO benefit plans (the "AIMCO Benefit Plans") listed on
Schedule 5.2 hereof and outstanding warrants, (vi) 11,408,973 shares of
AIMCO Common Stock were reserved for issuance upon conversion of AIMCO
Preferred Stock, (vii) 162,500 shares of AIMCO Common Stock were reserved
for issuance upon conversion of AIMCO Class B Common Stock and (viii) no
Voting Debt of AIMCO was issued or outstanding.
(b) As of October 1, 1998, all outstanding shares of AIMCO Common
Stock and AIMCO Preferred Stock were validly issued, fully paid and
nonassessable and are not subject to preemptive rights.
(c) Upon consummation of the Merger and issuance, if applicable,
of shares of AIMCO Common Stock which comprise the Merger Consideration,
all such shares will be validly issued, fully paid and nonassessable and
will not be subject to preemptive rights.
(d) As of October 1, 1998, except as set forth on Schedule 5.2
hereof, there were no outstanding subscriptions, calls, options, contracts,
voting trusts, proxies or other commitments, understandings, restrictions,
arrangements, rights or warrants, including any right of conversion or
exchange under any outstanding security, instrument or other agreement,
obligating AIMCO or any of its Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock
or other ownership interest or any Voting Debt of AIMCO or any of its
Subsidiaries or obligating AIMCO or any Subsidiary of AIMCO to grant,
extend or enter into any such agreement or commitment. Except as set forth
on Schedule 5.2 hereof, after the Effective Time, there will be no
agreement or commitment of any character obligating AIMCO or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, any shares of capital stock or other ownership interest or any Voting
Debt of AIMCO or any of its Subsidiaries, or obligating AIMCO or any
Subsidiary of AIMCO to grant, extend or enter into any such agreement or
commitment.
(e) TPI has consented to the termination of its rights and
obligations under the First Amended and Restated Agreement and has approved
this Agreement as an amendment to the First Amended and Restated Agreement.
Section 3. Authority; Non-Contravention; Required Filings.
(a) Authority. AIMCO had on October 1, 1998, and AIMCO has on the
date hereof, all requisite corporate power and authority to enter into the
Original Agreement and this Agreement, respectively, and to consummate the
transactions contemplated hereby. The execution and delivery of the
Original Agreement and this Agreement and the consummation by AIMCO of the
transactions contemplated thereby and hereby have each been duly authorized
by the AIMCO Board, which constitutes all necessary corporate action on the
part of AIMCO. Each of the Original Agreement and this Agreement have been
duly and validly executed and delivered by AIMCO and, assuming the due
authorization, execution and delivery thereof and hereof by IPT, this
Agreement constitutes the legal, valid and binding obligation of each of
AIMCO enforceable against AIMCO in accordance with its terms.
(b) Non-Contravention. The execution and delivery of the Original
Agreement did not, the execution and delivery of this Agreement by AIMCO
does not, and the consummation of the transactions contemplated hereby will
not, violate, conflict with or result in a breach of (any such violation,
conflict or breach is referred to herein as a "Violation") any provision of
(i) the charter of AIMCO, as in effect on October 1, 1998 and on the date
hereof, or the by-laws of AIMCO, as in effect on October 1, 1998 and on the
date hereof, (ii) any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any governmental
authority (a "Law") applicable to AIMCO or any Subsidiary of AIMCO or any
of their respective properties or assets or (iii) any note, bond, mortgage,
indenture, credit enhancement agreement, deed of trust, license, franchise,
permit, concession, contract, lease or other instrument, obligation or
agreement of any kind to which AIMCO or any Subsidiary of AIMCO is a party
or by which it or any of its properties or assets may be bound or affected,
except in the case of clause (ii) or (iii) for any such Violation which
would not have, individually or in the aggregate, an AIMCO Material Adverse
Effect.
(c) Required Filings. As of the date hereof, except as required
under the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules of the NYSE (the "AIMCO Required Filings"), no declaration, filing or
registration with, or notice to, or authorization, consent or approval of,
any court, federal, state, local or foreign government or regulatory body
(including the United States Department of Housing and Urban Development
and/or applicable state housing agencies (collectively, "HUD"), a stock
exchange or other self-regulatory body) or authority (each, a "Governmental
Authority") is necessary for the execution and delivery of this Agreement
by AIMCO or the consummation by AIMCO of the transactions contemplated
hereby, except as would not result, individually or in the aggregate, in an
AIMCO Material Adverse Effect.
Section 4. Reports and Financial Statements. As of October 1,
1998, all filings required to be made by AIMCO since December 31, 1997
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (the "AIMCO SEC
Reports") had been filed with the Securities and Exchange Commission ( the
"SEC"). The AIMCO SEC Reports, as of their respective dates, complied in
all material respects with all applicable requirements of the appropriate
statutes and the rules and regulations thereunder. As of their respective
dates, the AIMCO SEC Reports did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial
statements of AIMCO included in the AIMCO SEC Reports have been prepared in
accordance with generally accepted accounting principles ("GAAP") applied
on a consistent basis (except as may be indicated therein or in the notes
thereto or, with respect to unaudited interim financial statements, as
permitted by Form 10-Q of the SEC) and fairly present, in all material
respects, the financial position of AIMCO as of the dates thereof and the
results of its operations and cash flows for the periods then ended,
subject, in the case of the unaudited interim financial statements, to
normal, recurring audit and year-end adjustments.
Section 5. Absence of Certain Changes or Events. As of October 1,
1998, except as set forth in the AIMCO SEC Reports, since December 31,
1997, (a) each of AIMCO and its Subsidiaries had conducted its business in
the ordinary course of business consistent with past practice, and (b)
there had not been any AIMCO Material Adverse Effect.
Section 6. Registration Statement, Information
Statement/Prospectus and Schedule 13E-3. The information supplied or to be
supplied by or on behalf of AIMCO for inclusion or incorporation by
reference in (a) a registration statement on Form S-4 (together with all
amendments thereto, the "Registration Statement") in connection with the
proposed issuance of shares of AIMCO Common Stock as Merger Consideration,
in which the Information Statement/Prospectus (as defined below) shall be
included as a prospectus at the time it is filed with the SEC, at the time
the Registration Statement is filed with the SEC, at the time it becomes
effective under the Securities Act, and at the Effective Time will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and (b) a combined information
statement and prospectus to be distributed in connection with the Merger
and the transactions contemplated hereby (as amended or supplemented, the
"Information Statement/Prospectus"), at the time it is filed with the SEC,
at the time it is mailed to the IPT Shareholders and at the time of the IPT
Meeting, and the transaction statement on Schedule 13E-3 (the "Schedule
13E-3"), at the time such statement is filed with the SEC, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement, the Information
Statement/Prospectus and the Schedule 13E-3 will comply as to form in all
material respects with the provisions of the Securities Act and the
Exchange Act and the rules and regulations thereunder.
Section 7. No Vote Required. The approval of the Original
Agreement, this Agreement, the Merger and the other transactions
contemplated thereby and hereby, including, without limitation, the
issuance and listing on the NYSE of the shares of AIMCO Common Stock to be
issued in the Merger, did not and does not require the vote of the holders
of any class or series of stock of AIMCO or any of its Subsidiaries.
Section 8. Tax Matters.
(a) Filing of Timely Tax Returns. As of October 1, 1998, AIMCO and
each of its Subsidiaries had filed (or there had been filed on their
respective behalf) all Tax Returns required to be filed by each of them
under applicable law. All such Tax Returns were and are in all material
respects true, complete and correct and filed on a timely basis.
(b) Payment of Taxes. As of October 1, 1998, AIMCO and each of its
Subsidiaries had, within the time and in the manner prescribed by law, paid
all Taxes that are currently due and payable for all periods through and
including the Closing Date, except for those contested in good faith and
for which adequate reserves have been taken.
(c) Tax Reserves. As of October 1, 1998, AIMCO and its
Subsidiaries had established on their books and records reserves adequate
to pay all material Taxes and reserves for deferred income Taxes in
accordance with GAAP.
(d) Tax Liens. As of October 1, 1998, there were no Tax liens upon
the material assets of AIMCO or any of its Subsidiaries except liens for
Taxes not yet delinquent.
(e) REIT Classification. At all times since the initial public
offering of AIMCO, AIMCO has been organized and operated in conformity with
the Status Requirements, and its proposed method of operation will enable
it to continue to meet the Status Requirements and otherwise qualify as a
REIT.
(f) Continuation as REIT. The consummation by AIMCO of the
transactions contemplated hereby and the compliance with or fulfillment of
terms and provisions hereof by AIMCO, will not adversely affect the
qualification of AIMCO as a REIT for each taxable year ending on or after
the date on which the Effective Time occurs.
(g) Deficiencies. As of October 1, 1998, no deficiencies for any
Taxes had been proposed, asserted or assessed against AIMCO, and there was
no outstanding waiver of the statute of limitations with respect to any
Taxes or Tax Returns of AIMCO.
(h) Domestic Control. As of October 1, 1998, AIMCO believed that
it was a "domestically-controlled" REIT within the meaning of Section
897(h)(4)(B) of the Code.
Section 9. Brokers. As of October 1, 1998, no broker, finder or
investment banker was entitled to any broker's, finder's or other fee or
commission in connection with the Merger or the transactions contemplated
by this Agreement based upon arrangements made by, or on behalf of, AIMCO.
Section 10. Absence of Inducement. In entering into this
Agreement, AIMCO has not been induced by, or relied upon, any
representations, warranties, or statements by IPT not set forth or referred
to in this Agreement or the other documents required to be delivered
hereby, whether or not such representations, warranties, or statements have
actually been made, in writing or orally, and AIMCO acknowledges that, in
entering into this Agreement, IPT has been induced by and relied upon the
representations and warranties of AIMCO herein set forth, the information
set forth in the AIMCO SEC Reports and in the other documents required to
be delivered hereby. AIMCO has made its own investigation of IPT prior to
the execution of this Agreement and has not been induced by or relied upon
any representations, warranties or statements as to the advisability of
entering into this Agreement other than as set forth above.
Section 11. Conduct of IPT's Business. AIMCO has complied, and has
caused IPT to comply, with Section 6.14(a)-(j) from October 1, 1998 to the
date hereof.
Section 12. Purchases of AIMCO Common Stock. Neither AIMCO nor any
of its affiliates (as defined in Rule 12b-2 under the Exchange Act),
directly or indirectly, bid for or purchased or attempted to induce any
person to bid for or purchase AIMCO Common Stock from the fifth business
day prior to the first day of the period in which the AIMCO Collar Price
was determined until the last day of the period in which the AIMCO Collar
Price was determined.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 1. IPT and IPLP Distributions.
(a) Definitions.
(i) "Special AIMCO Distribution" means any distribution,
other than a regular quarterly distribution, on a share of AIMCO
Common Stock with a record date prior to the Effective Time.
(ii) "IPT Final Distribution Amount" means an amount
(rounded up to the next whole cent) equal to (a) $0.16; plus (b)
either (i) if the IPT Meeting Date occurs on or before February 28,
1999, $0.001758 multiplied the number of days between December 24,
1998 (inclusive) and the day immediately preceding the IPT Meeting
Date (inclusive), or (ii) if the IPT Meeting Date occurs on or after
March 1, 1998, $0.117786 plus the product of (A) the number of days
between March 1, 1998 (inclusive) and the day immediately preceding
the IPT Meeting Date (inclusive) multiplied by (B) the greater of (x)
$0.001758 or (y) the quotient of (i) the product of 0.36011 multiplied
by the per share amount of the most recent distribution declared, as
of the date of determination, by the AIMCO Board in respect of the
AIMCO Common Stock (other than a Special AIMCO Distribution), divided
by (ii) 91.
(b) Regular Quarterly Distributions. IPT shall not, from and after
the date hereof, declare or pay distributions on the IPT Common Shares
except as set forth in Sections 6.1(c), (d) and (e); provided, however,
that if the Effective Time shall not have occurred by June 1, 1999, IPT may
thereafter, at the election of a majority of the Continuing Trustees,
declare and pay a distribution in an amount in cash per IPT Common Share
equal to the IPT Final Distribution Amount (assuming that for purposes of
determining the IPT Final Distribution Amount the IPT Meeting Date were the
date prior to the record date for such distribution) and regular quarterly
distributions thereafter, each in an amount in cash per IPT Common Share
equal to the greater of (x) $0.16 or (y) the product of 0.36011 multiplied
by the per share amount of the most recent distribution declared, as of the
date of determination, by the AIMCO Board in respect of the AIMCO Common
Stock (other than a Special AIMCO Distribution).
(c) Final IPT Distribution.
(i) On a date prior to the IPT Meeting, IPT shall declare
a special cash distribution with a record date which is the date
immediately preceding the IPT Meeting Date in an amount per IPT Common
Share equal to the IPT Final Distribution Amount.
(ii) Before the Closing Date, IPT shall set aside the
monies necessary to pay the distribution pursuant to this Section
6.1(c), and such distributions shall be paid fifteen calendar days
after such record date.
(d) Special AIMCO Distribution. In the event that the Effective
Time has not occurred on or before February 28, 1999, if at any time
thereafter AIMCO declares a Special AIMCO Distribution, then IPT shall
promptly declare and pay a corresponding distribution on each IPT Common
Share with the same record date in an amount equal to the amount of such
Special AIMCO Distribution, multiplied by 0.36011.
(e) Excess Distribution. If and to the extent that IPT reasonably
determines that the distributions required to be paid by IPT pursuant to
the foregoing subsections (c) and (d) of this Section 6.1 are not
sufficient for IPT to meet the distribution requirements applicable to
REITs for IPT's taxable year ended on the date on which the Effective Time
occurs, including as a result of the AMIT Merger, then IPT shall, prior to
the date on which the Effective Time occurs, declare, with a record date
prior to the Effective Time, one or more special distributions in respect
of the IPT Common Shares in an aggregate amount equal to the amount of such
shortfall (the aggregate of all such distributions per IPT Common Share, if
any, is referred to herein as the "Excess Distribution Amount").
(f) Covenant of AIMCO. AIMCO covenants and agrees that AIMCO will
cause IPT to timely declare and pay the distributions required to be made
pursuant to this Section 6.1.
Section 2. Registration Statement, Information
Statement/Prospectus and Schedule 13E-3.
(a) As soon as reasonably practicable after October 1, 1998, (i)
AIMCO shall prepare and file with the SEC the Registration Statement and
(ii) the parties shall prepare and file with the SEC the Information
Statement/Prospectus and Schedule 13E-3.
(b) The parties shall use their reasonable best efforts to have
the Registration Statement declared effective under the Securities Act by
the SEC as soon as practicable after such filing and to cause the
Information Statement/Prospectus to be mailed to IPT Shareholders as soon
as practicable after the Registration Statement is declared effective by
the SEC. None of the parties shall take any action or omit to take any
action which could reasonably be expected to result in a postponement of
adjournment of the IPT Meeting; provided, however, that any party may take
any such action or omit to take any such action which counsel has advised
is required to be taken or omitted if it does not result in the
postponement or adjournment of the IPT Meeting by more than 10 NYSE trading
days.
(c) Each party shall furnish all information concerning itself
which is required or customary for inclusion in the Registration Statement,
the Information Statement/Prospectus or the Schedule 13E-3. The information
provided by any party for use in (i) the Registration Statement will not,
either at the time the Registration Statement is filed with the SEC, at the
time any amendment thereof or supplement thereto is filed with the SEC, or
at the time it becomes effective under the Securities Act, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and (ii) the Information Statement/Prospectus will
not, either at the date mailed to the IPT Shareholders or at the time of
the IPT Meeting, and the Schedule 13E-3 will not, at the time it is filed
with the SEC or at the time any amendment thereof or supplement thereto is
filed with the SEC, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. No representation, covenant or
agreement is made by any party with respect to information supplied by the
other party for inclusion in the Registration Statement, the Information
Statement/Prospectus or the Schedule 13E-3.
(d) Each party shall also take such action as may be reasonably
required to cause the shares of AIMCO Common Stock covered by the
Registration Statement to be approved for listing on the NYSE as of the
Effective Time, upon official notice of issuance. Each party shall also
take such action as may be reasonably required to cause the shares of AIMCO
Common Stock issuable in connection with the Merger to be registered or to
obtain an exemption from registration under applicable state "blue sky" or
securities laws; provided, however, that no party shall be required to
register or qualify as a foreign corporation or to take other action which
would subject it to general service of process in any jurisdiction where
the Surviving Entity will not be, following the Merger, so subject.
Section 3. Regulatory Matters. Each party shall cooperate and use
its reasonable best efforts to promptly prepare and file all necessary
documentation and to effect all necessary applications, notices, petitions,
filings and other documents, including, without limitation, the AIMCO
Required Filings.
Section 4. Shareholder Approval. IPT shall, as soon as practicable
after October 1, 1998, (a) take all steps necessary to duly call, give
notice of, convene and hold the IPT Meeting, which meeting shall be held on
a date (including the date on which action is taken at such meeting as it
may be postponed or adjourned, the "IPT Meeting Date") which is a NYSE
trading day, provided that the day immediately preceding such date must
also be a NYSE trading day, and (b) timely distribute to IPT Shareholders
the Information Statement/Prospectus. The IPT Board, acting upon the
recommendation of a majority of the Continuing Trustees, unless otherwise
required in accordance with its fiduciary duties to IPT Shareholders, shall
recommend to such shareholders the approval of the Merger, this Agreement
and the transactions contemplated hereby and cooperate and consult with
AIMCO with respect to each of the foregoing matters. Notwithstanding the
foregoing, IPT and the Continuing Trustees may take and disclose to IPT
Shareholders a position contemplated by Rule 14e-2 promulgated under the
Exchange Act if required to do so by the Exchange Act, comply with Rule
14d-9 thereunder and make all other disclosures required by applicable law.
Section 5. Vote of IPT Common Shares Owned by AIMCO. AIMCO agrees
to vote all IPT Common Shares owned of record by it, and to cause all IPT
Common Shares owned of record by its Subsidiaries to be voted, for approval
of this Agreement and the transactions contemplated hereby and has executed
a proxy in favor of Messrs. Aston, Farkas and Garrison (the "Proxyholders")
to vote all such IPT Common Shares held by AIMCO, directly or indirectly,
in favor of the Merger, the adoption of this Agreement and the transactions
contemplated hereby. AIMCO further agrees that, through the Effective Time,
it shall not (a) sell, transfer or otherwise dispose of any IPT Common
Shares owned by it or permit any of its Subsidiaries to sell, transfer or
otherwise dispose of any IPT Common Shares owned by it, (b) cause or permit
IPT to issue additional IPT equity securities to any other Person or take
any other action which could have the effect of reducing the proportion of
IPT Common Shares owned by AIMCO and its Subsidiaries that are entitled to
vote on the Merger, this Agreement and the transactions contemplated
hereby, or (c) grant any other proxies with respect to such shares;
provided, however, that AIMCO may (i) transfer IPT Common Shares owned by
it to its Subsidiaries so long as such Subsidiary agrees in writing to be
bound by the terms of this Agreement and executes and delivers to the
Proxyholders a proxy to vote such IPT Common Shares in favor of the Merger,
the adoption of this Agreement and the transactions contemplated hereby, or
(ii) pledge such IPT Common Shares to a commercial bank or other bona fide
financial institution with capital exceeding $100,000,000 (a "Financial
Institution") so long as such Financial Institution agrees in writing to
(A) honor the proxy given by AIMCO to the Proxyholders with respect to such
pledged IPT Common Shares, (B) execute and deliver to the Proxyholders a
proxy in favor of the Proxyholders or their successors once the Financial
Institution obtains the right to vote such pledged IPT Common Shares and
(C) cause any transferee of such IPT Common Shares from the Financial
Institution to execute and deliver a proxy in favor of the Proxyholders or
their successors and to agree to cause any subsequent transferee of the IPT
Common Shares to also agree to the obligations in this clause (C).
Section 6. Public Announcements. Subject to each party's
disclosure obligations imposed by law and the rules of any national
securities exchange or inter-dealer quotation system on or in which the
shares of stock, beneficial interest or other ownership interests of IPT or
AIMCO are now or may later be listed or authorized to be quoted, IPT and
AIMCO shall cooperate with each other in the development and distribution
of all news releases and other public announcements with respect to this
Agreement or any of the transactions contemplated hereby and shall not
issue any public announcement or statement with respect hereto or thereto
without the consent of the other party (which consent shall not be
unreasonably withheld).
Section 7. Expenses. All costs and expenses incurred in connection
with the Original Agreement, the First Amended and Restated Agreement and
this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
Section 8. Further Assurances. AIMCO covenants and agrees to use
its reasonable best efforts to consummate the Merger as soon as possible.
Each party shall, and shall cause its Subsidiaries to, execute such further
documents and instruments and take such further action, including, without
limitation, obtaining any consents, authorizations, exemptions and
approvals, as may be necessary to perform the obligations and satisfy the
conditions to be performed or satisfied by either party pursuant to this
Agreement or as may reasonably be requested by the other party in order to
consummate the Merger in accordance with the terms hereof.
Section 9. Transfer Taxes. The parties shall cooperate in the
preparation, execution and filing of all returns, questionnaires,
applications or other documents regarding the real property transfer or
gains, sales, use, transfer, value added, stock transfer and stamp taxes,
any transfer, recording, registration and other fees or similar Taxes
("Transfer Taxes") which become payable in connection with the transactions
contemplated by this Agreement that are required to be filed on or before
the Effective Time.
Section 10. IPT Trustees and Officers.
(a) IPT shall recognize that the Continuing Trustees are
authorized and empowered to act to the extent set forth in the IPT Bylaws.
The AIMCO Committee and the Executive Committee shall not be dissolved
prior to the earlier of the Effective Time or the termination of this
Agreement.
(b) The powers of the Continuing Trustees shall not be modified,
without the consent of a majority of the Continuing Trustees, prior to the
earlier of the Effective Time or the termination of this Agreement.
(c) If, after October 1, 1998 and prior to the Effective Time, any
IPT Shareholder vote is taken for the election of a trustee to a
trusteeship on the IPT Board currently occupied by a Continuing Trustee or
by any successor duly elected hereunder (a "Continuing Trusteeship"), AIMCO
shall vote its IPT Common Shares for the reelection of each such Continuing
Trustee or for the election of such Continuing Trustee's successor as may
be designated by a majority of the remaining Continuing Trustees. If, after
October 1, 1998 and prior to the Effective Time, any vacancy on the IPT
Board arises with respect to a Continuing Trusteeship, AIMCO shall cause
the AIMCO-nominated Trustees to vote to fill such vacancy by electing a
person nominated by a majority of the remaining Continuing Trustees.
(d) After October 1, 1998 and prior to the earlier of the
Effective Time or the termination of this Agreement, without the prior
written consent of a majority of the Continuing Trustees, which shall not
be unreasonably withheld, IPT shall not terminate (i) Ernst & Young LLP
from serving as its independent auditors, (ii) Lehman Brothers Inc. from
serving as its financial advisor with respect to the Merger, or (iii)
Proskauer Rose LLP, Miles & Stockbridge P.C., Rogers & Wells LLP or Akin,
Gump, Strauss, Hauer & Feld, L.L.P. from serving as its legal counsel with
respect to the Merger.
(e) The parties agree that Jeffrey P. Cohen shall remain as
Secretary of IPT and, in such capacity, shall be invited and entitled to
attend all meetings of the IPT Board and each committee thereof. In the
event that Jeffrey P. Cohen shall cease to serve as Secretary of IPT for
any reason, another individual nominated by a majority of the Continuing
Trustees shall be appointed to such position and be so invited and entitled
to attend such meetings.
(f) Without the approval of a majority of the Continuing Trustees,
AIMCO shall not, and shall not permit any AIMCO-nominated Trustee to,
remove a Continuing Trustee from the IPT Board or amend the IPT Declaration
(unless such amendment shall have been approved by a majority of the
Continuing Trustees).
Section 11. Modification of Form of Transaction. Upon the earlier
to occur of (a) December 31, 2000 or (b) such time (if ever) as any Law is
adopted or promulgated after October 1, 1998 which has the effect, as
supported by the written opinion of outside counsel for AIMCO, of
prohibiting the Merger, or any court of competent jurisdiction in the
United States shall have issued an order, judgment or decree permanently
restraining, enjoining or otherwise prohibiting the Merger, which order,
judgment or decree has become final and nonappealable, IPT, acting upon the
recommendation of a majority of the Continuing Trustees, and AIMCO shall
each use its best efforts to restructure the form of the transaction to one
which has a materially improved chance of completion and can be
accomplished without materially changing either the consideration to be
received by IPT Shareholders or the tax or other economic consequences of
the transaction to AIMCO and its Subsidiaries. Any restructuring of the
transaction as contemplated by this Section 6.11 shall not relieve AIMCO or
IPT of their respective obligations under Section 6.8 of this Agreement.
Section 12. Indemnification.
(a) Certain Definitions.
(i) "Taxes," as used in this Section 6.12, means any
Federal, state, county, local or foreign taxes, charges, fees, levies
or other assessments, including all net income, gross income, sales
and use, ad valorem, transfer, gains, profits, excise, franchise, real
and personal property, gross receipt, capital stock, share,
production, business and occupation, disability, employment, payroll,
license, estimated, stamp, custom duties, severance or withholding
taxes or charges imposed by any governmental entity, and includes any
interest and penalties (civil or criminal) on or additions to any such
taxes.
(ii) "Indemnitee" shall mean each person who was, is or
hereafter may become a trustee, officer or employee of IPT, and their
respective successors, heirs and personal representatives.
(iii) "Losses" shall mean any and all actual costs or
expenses (including, without limitation, attorneys' fees billed at
standard hourly rates and expenses, as and when incurred, in
connection with any action, claim or proceeding relating thereto,
investigation costs and remediation costs, interest, penalties and
fines and all legal and other costs, expenses and disbursements in
giving testimony or furnishing documents in response to a subpoena or
otherwise), judgments, amounts paid in settlement, fines, penalties,
assessments, Taxes (excluding Taxes arising from amounts paid to an
Indemnitee), losses, actions or causes of action, claims, demands,
damages, liabilities, obligations, awards, disbursements or
assessments of every kind, nature and description. Notwithstanding the
foregoing, Losses shall be reduced to reflect any insurance proceeds
actually recovered by the Indemnitee relating to such claim, provided
that this reduction shall not be applied if to do so would excuse any
insurer from any obligation to cover any loss. If the Indemnitee
receives insurance proceeds after it receives indemnity hereunder,
then the Indemnitee, within ten days of receipt of such proceeds,
shall pay to AIMCO the amount by which AIMCO's payment would have been
reduced if the insurance proceeds had been received before AIMCO paid
the Indemnitee.
(b) AIMCO shall save, defend, indemnify and hold harmless each
Indemnitee to the fullest extent permitted by applicable law from and
against all Losses, as and when incurred, whether or not involving a third
party, that arise out of or are the result of the fact that he is, was, or
is to be, either prior to or after the execution of the Original Agreement,
a trustee, officer or employee of IPT, except that no Indemnitee shall be
entitled to be indemnified hereunder with respect to any Loss determined to
have been incurred (i) by reason of such Indemnitee's wilful misconduct or
(ii) with respect to attorney's fees and expenses which are not reasonable,
in each case in a written factual finding issued in a court proceeding or
other adjudication not subject to further appeal or issued in an
arbitration (as to (ii) only). Each Indemnitee shall promptly return to
AIMCO any funds advanced to such Indemnitee pursuant to Section 6.12(c) if
and to the extent such Indemnitee is found not to be entitled to be
indemnified in the situations described in clauses (i) and (ii) above.
AIMCO shall make payments under this Section 6.12 within 30 days from the
date that an Indemnitee has requested an indemnification payment hereunder.
(c) If any action, suit, proceeding or investigation is commenced
as to which an Indemnitee desires to receive indemnification, such
Indemnitee shall notify AIMCO with reasonable promptness; provided,
however, that failure to give reasonably prompt notice to AIMCO shall not
affect the indemnification obligations of AIMCO hereunder except to the
extent that the failure to so notify has prejudiced AIMCO in such action,
suit, proceeding or investigation. The Indemnitee shall have the right to
retain counsel of such Indemnitee's own choice to represent such
Indemnitee; and such counsel shall, to the extent consistent with its
professional responsibilities, cooperate with AIMCO and any counsel
designated by AIMCO. Subject to the penultimate sentence of Section
6.12(b), from time to time as requested by the Indemnitee, AIMCO will
advance the Indemnitee funds sufficient to satisfy all attorneys' fees at
standard hourly rates and expenses of such counsel as and when incurred and
invoiced. AIMCO shall be liable only for any settlement of any claim
against an Indemnitee made with AIMCO's written consent, which consent
shall not be unreasonably withheld. AIMCO shall not, without the prior
written consent of an Indemnitee, settle or compromise any claim, or permit
a default or consent to the entry of any judgment in respect thereof,
unless such settlement, compromise or consent includes, as an unconditional
term thereof, the giving by the claimant to such Indemnitee of an
unconditional release from all liability in respect of such claim.
(d) Before enforcing rights under this Section 6.12, an Indemnitee
must first demand indemnification from IPT pursuant to the indemnification
provisions set forth in the IPT Declaration, IPT Bylaws or any contractual
arrangement between such Indemnitee and IPT. If, after ten business days
from the date that such Indemnitee had requested indemnification from IPT
pursuant to the indemnification provisions of the IPT Declaration, IPT
Bylaws or any contractual arrangement between such Indemnitee and IPT, IPT
has not paid the Indemnitee's claim or satisfactorily responded to such
Indemnitee's request, as reasonably determined by the Indemnitee, the
Indemnitee shall be free to assert a claim for indemnification pursuant to
Section 6.12(c).
(e) Notwithstanding any other provision of this Agreement to the
contrary, this Section 6.12 and Section 6.13 shall survive the consummation
of the Merger and termination of this Agreement.
Section 13. Insurance. AIMCO and IPT agree that after October 1,
1998 and until the Effective Time, IPT shall maintain in full force and
effect, and AIMCO shall use its best efforts to cause IPT to maintain in
full force and effect, directors', trustees' and officers' liability
insurance covering the existing and Continuing Trustees, directors and
officers of IPT and its Subsidiaries which is no less favorable than the
insurance coverage which is in effect and covering such trustees, directors
and officers on October 1, 1998. AIMCO further agrees that, following the
Effective Time, the Surviving Entity will maintain such insurance covering
such persons, and each such person covered by such insurance immediately
prior to the Effective Time shall be named as additional insureds.
Section 14. Conduct of IPT's Business Pending the Effective Time.
Each of IPT and AIMCO covenants and agrees that from October 1, 1998 until
the Effective Time:
(a) IPT shall use its best efforts to maintain its
listing on the American Stock Exchange;
(b) none of IPT, IPLP or any Controlled IPT Entity (as
defined in Section 8.2) shall loan money to AIMCO or any Controlled
AIMCO Entity (as defined in Section 8.2);
(c) neither IPT nor IPLP shall reclassify any of their
respective equity securities or other interests or issue or authorize
or propose the issuance of any other securities or interests in
respect of, in lieu or, or in substitution for, their respective
equity securities or other interests;
(d) neither IPT nor AIMCO shall cause the IPLP Limited
Partnership Agreement to be amended, except with the prior consent of
a majority of the Continuing Trustees, provided that IPLP may admit
Additional Limited Partners (as defined the IPLP Limited Partnership
Agreement) other than AIMCO or its affiliates to IPLP in accordance
with the terms of the IPLP Limited Partnership Agreement without such
consent;
(e) during such time as AIMCO controls (as such term is
defined in the rules and regulations promulgated under Rule 12b-2 of
the Exchange Act) IPT, IPT shall not, and AIMCO shall cause IPT not
to, make termination fee payments to AIMCO or any of its Subsidiaries
under sections 7.1(c), 7.2(c) or 7.2(d) of the IPLP Limited
Partnership Agreement or permit AIMCO to benefit from the rights
provided in section 9.6 thereof;
(f) IPT shall duly and timely file all reports and other
documents required to be filed pursuant to the Securities Act, the
Exchange Act and the rules and regulations thereunder;
(g) IPT shall follow the same general policy as AIMCO in
releasing and drafting its future press releases and such releases
will include the AIMCO Collar Price, the IPT Exchange Value and, if
applicable, the future date through which AIMCO may elect to pay the
Merger Consideration in cash;
(h) AIMCO shall not, nor shall AIMCO permit any of AIMCO's
Subsidiaries to, willfully take any action that would result in a
state of facts which would make the Merger impossible to be
consummated or would result in a material breach of any provision of
this Agreement or in any of its material representations and
warranties set forth in this Agreement being untrue on and as of the
Effective Time; provided, however, that AIMCO and its Subsidiaries may
issue securities, acquire securities or assets and otherwise act in
the ordinary course of their business;
(i) all transactions between IPT, IPLP or any Controlled
IPT Entity, on the one hand, and AIMCO or any Controlled AIMCO Entity,
on the other hand, shall be on arms' length terms;
(j) IPT shall not increase its annual general and
administrative expenses in excess of an annual increase based on the
Consumer Price Index (with the amortization of restricted stock
outstanding as of October 1, 1998 being excluded from the definition
of general and administrative expenses); and
(k) neither AIMCO nor any of its affiliates (as defined in
Rule 12b-2 of the Exchange Act), directly or indirectly, shall bid
for, purchase or attempt to induce any Person to bid for or purchase
AIMCO Common Stock except in compliance with Regulation M and,
treating the purchasing entity as the "issuer," Rule 10b-18 under the
Exchange Act from the fifth business day prior to the first day of the
period in which the AIMCO Reference Price is determined until the last
day of the period on which the AIMCO Reference Price is determined.
AIMCO shall report the volume, dates and prices of such purchases to
IPT's Secretary weekly.
ARTICLE VII
CONDITIONS
Section 1. Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(a) Shareholder Approval. The IPT Shareholders' Approval shall
have been obtained.
(b) No Injunction. No temporary restraining order or preliminary
or permanent injunction or other order by any federal or state court
preventing consummation of the Merger shall have been issued and be
continuing in effect.
(c) No Change in Law. The Merger and the other transactions
contemplated hereby shall not have been prohibited under any applicable
Federal or state law or regulation adopted or amended after October 1,
1998.
(d) Effectiveness of Registration Statement. If the Merger
Consideration to be issued pursuant to Section 2.1 includes shares of AIMCO
Common Stock, (i) the Registration Statement shall continue to be effective
under the Securities Act at the Effective Time, and no stop order
suspending such effectiveness shall be in effect and (ii) all applicable
time periods required under the Exchange Act and the American Stock
Exchange rules following the mailing of the Information
Statement/Prospectus to IPT Shareholders shall have elapsed.
Section 2. Additional Conditions to Obligation of IPT to Effect
the Merger. The obligation of IPT to effect the Merger shall be further
subject to the satisfaction, at or prior to the Closing Date, of the
following conditions, unless waived by a majority of the Continuing
Trustees in writing:
(a) Fairness Opinion. The Lehman Opinion shall not have been
withdrawn.
(b) Representations and Warranties. If the Merger Consideration
includes shares of AIMCO Common Stock, the representations and warranties
of AIMCO contained in Article V which are qualified as to materiality shall
be true and correct, and all other representations and warranties of AIMCO
contained in this Agreement shall be true and correct, in all material
respects, in each case (i) on and as of October 1, 1998 and/or the date
hereof, as applicable, and (ii) at and as of the Closing Date with the same
effect as though such representations and warranties had been made at and
as of the Closing Date (except for representations and warranties that
expressly speak only as of a specific date or time (other than October 1,
1998 and/or the date hereof) which need only be true and correct as of such
date or time); provided that this condition to the obligation of IPT to
consummate the Merger shall be deemed satisfied if the aggregate losses,
costs, damages and expenses to IPT due to breaches of such representations
and warranties (without giving effect to any materiality qualification or
standard contained in any such representations and warranties), when
aggregated with failures to comply with covenants by AIMCO and AIMCO
Material Adverse Effects, does not exceed $50 million.
(c) Performance of Obligations of AIMCO. If the Merger
Consideration includes shares of AIMCO Common Stock, each of AIMCO and
AIMCO's Subsidiaries shall have performed or complied with, in all
respects, all of their respective obligations set forth in Sections 6.1,
6.2, 6.3, 6.6, 6.8, 6.9, 6.10, 6.12, 6.13 and 6.14. If the Merger
Consideration is to be comprised only of cash, AIMCO shall have performed
or complied with, in all respects, all of its obligations set forth in
Section 6.1, 6.3, 6.6, 6.8, 6.12 and 6.13.
(d) AIMCO Officer's Certificate. If the Merger Consideration
includes shares of AIMCO Common Stock, IPT shall have received a
certificate signed by the President of AIMCO, dated as of the Closing Date,
to the effect that, to the best of such officer's knowledge, the conditions
set forth in Sections 7.2(b) and (c) have been satisfied.
(e) AIMCO Opinions. If the Merger Consideration includes shares of
AIMCO Common Stock, IPT shall have received (i) an opinion of Skadden,
Arps, Slate, Meagher & Flom LLP, special tax counsel to AIMCO, dated as of
the Closing Date, substantially in the form attached hereto as Exhibit
7.2(e)-1 (an "AIMCO REIT Opinion"), and (ii) an opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, special tax counsel to AIMCO, dated as of the
Closing Date, substantially in the form attached hereto as Exhibit 7.2(e)-2
(an "AIMCO Reorganization Opinion"); provided, however, that if all other
conditions in this Section 7.2 have been satisfied or waived and if AIMCO
is unable to deliver either of such opinions after having exercised its
reasonable best efforts to do so, (A) the Merger Consideration shall be
paid solely in cash pursuant to clause (y) of Section 2.1(b)(i) (assuming
the Cash Percentage is equal to 100%) and (B) neither the receipt of an
AIMCO REIT Opinion nor the receipt of an AIMCO Reorganization Opinion by
IPT shall be a condition to effecting the Merger.
(f) AIMCO Corporate Law Opinion. IPT shall have received an
opinion of Ballard, Spahr, Andrews & Ingersoll, LLP, special Maryland
counsel to AIMCO, dated as of the Closing Date, substantially in the form
attached hereto as Exhibit 7.2(f).
(g) IPT Distributions. All distributions required to be declared
prior to the Effective Time pursuant to Section 6.1 shall have been
declared and any such distributions required to be paid prior to the
Effective Time pursuant Section 6.1 shall have been paid; provided,
however, that any waiver of this condition shall not be deemed a waiver of
any of IPT's or AIMCO's obligations under Section 6.1.
Section 3. Additional Conditions to Obligation of AIMCO to Effect
the Merger. The obligation of AIMCO to effect the Merger shall be further
subject to the satisfaction, at or prior to the Closing Date, of the
following conditions, unless waived by AIMCO in writing:
(a) Representations and Warranties. The representations and
warranties of IPT contained in Article IV which are qualified as to
materiality shall be true and correct and all other representations and
warranties of IPT contained in this Agreement shall be true and correct, in
all material respects, in each case, on and as of October 1, 1998 and/or
the date hereof, as applicable; provided that this condition to the
obligation of AIMCO to consummate the Merger shall be deemed satisfied if
the aggregate loss, cost, damage or expense to AIMCO due to breaches of
such representations and warranties (without giving effect to any
materiality qualification or standard contained in any such representations
and warranties) does not exceed $50 million.
(b) REIT Opinion. The opinion of Akin, Gump, Strauss, Hauer and
Feld, L.L.P., counsel to IPT, dated and delivered to AIMCO on October 1,
1998, receipt of which is hereby acknowledged by AIMCO, shall not have been
withdrawn on the basis solely of facts existing as of October 1, 1998.
(c) Opinion of IPT's Counsel. The opinion of Miles & Stockbridge
P.C., counsel to IPT, dated and delivered to AIMCO on October 2, 1998,
receipt of which is hereby acknowledged by AIMCO, shall not have been
withdrawn on the basis solely of facts existing as of October 2, 1998.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after receipt of the IPT Shareholders' Approval contemplated by
this Agreement:
(a) by mutual written consent of a majority of the Continuing
Trustees, on behalf of IPT, and the AIMCO Board; or
(b) by AIMCO by written notice to each of the Continuing Trustees,
if the Effective Time shall not have occurred on or before December 31,
2001; or
(c) by a majority of the Continuing Trustees, on behalf of IPT, by
written notice to AIMCO, if:
(i) the Effective Time shall not have occurred on or
before December 31, 2001;
(ii) a majority of the Continuing Trustees shall have
determined in good faith that a proposal by or offer from any Person
relating to any (A) acquisition of a substantial amount of assets of
IPT or IPLP or any of the outstanding IPT Common Shares or IPLP
partnership interests, (B) offer to purchase outstanding IPT Common
Shares or IPLP partnership interests or (C) merger, consolidation,
business combination, sale of substantially all of the assets,
recapitalization, liquidation or similar transaction involving IPT or
IPLP, other than the transactions contemplated by this Agreement (an
"Alternative Proposal"), constitutes a proposal that is reasonably
likely to be consummated and would, if consummated, result in a
transaction which is more favorable, from a financial point of view,
to IPT Shareholders than the transactions contemplated by this
Agreement (a "Superior Proposal"); provided, however, that the
Continuing Trustees may not terminate this Agreement pursuant to this
Section 8.1(c)(ii) unless (1) five days shall have elapsed after
delivery to AIMCO of a written notice of such determination by the
Continuing Trustees and at all reasonable times during such five-day
period the Continuing Trustees shall have cooperated with AIMCO in
informing AIMCO of the terms and conditions of such Alternative
Proposal and the identity of the person or group making such
Alternative Proposal, with the objective of providing AIMCO a
reasonable opportunity, during such five-day period, to propose a
modification of the terms and conditions of this Agreement so that a
business combination between IPT and AIMCO may be effected, (2) during
such five-day period, the Continuing Trustees negotiate in good faith
with AIMCO with respect to such proposed modifications and (3) at the
end of such five-day period, a majority of the Continuing Trustees
continues to believe in good faith that such Alternative Proposal
constitutes a Superior Proposal; or
(iii) AIMCO takes any action that constitutes an
anticipatory repudiation of this Agreement and fails to cure such
action within ten days from receipt of notice (whether written or
oral) from a majority of the Continuing Trustees.
Section 2. Effect of Termination. In the event of termination of
this Agreement by IPT or AIMCO pursuant to Section 8.1, the effects and
consequences of such termination, and relative rights and obligations of
the parties as a result thereof, shall be as set forth in this Section 8.2
and in the IPT Bylaws.
(a) Certain Definitions. As used in this Agreement, the following
terms have the following meanings:
"AIMCO Termination Reference Price" means the average
price (computed based on the sum of the high and low sales prices of AIMCO
Common Stock (as reported in the NYSE Composite Transactions reporting
system as published in The Wall Street Journal or, if not published
therein, in another authoritative source) divided by two) of a share of
AIMCO Common Stock during the ten consecutive NYSE trading day period
ending on and including the Termination Date.
"AIMCO Termination Share Value" means the lesser of the
AIMCO Collar Price or the AIMCO Termination Reference Price.
"Common Partnership Unit" means a fractional, undivided
share of common ownership interest in IPLP, with economic rights and
preferences substantially the same as an IPT Common Share.
"Control" has the meaning specified in Rule 12b-2 of
the Exchange Act.
"Controlled AIMCO Entity" means AIMCO and each Person
which, as of or after October 1, 1998, is or becomes, directly or
indirectly, Controlled by AIMCO.
"Controlled IPT Entity" means any Person which, as of or
after October 1, 1998, is or becomes, directly or indirectly, Controlled by
IPT, other than IPLP and each wholly-owned Subsidiary of IPT or IPLP.
"Covered IPT Assets" means any and all (i) securities,
assets (whether real or personal, tangible or intangible) and other things
of value acquired by any Controlled AIMCO Entity from any of IPT, IPLP or
any wholly-owned Subsidiary of IPT or IPLP at any time on or prior to the
Termination Date (including prior to the IFG Merger) and (ii) cash and
non-cash distributions received in respect of the foregoing, together, in
the case of cash distributions, with a return thereon at an annual rate of
10%, compounded annually, from the date of receipt thereof through the
Termination Date; provided, that to the extent any item which would have
otherwise constituted a Covered IPT Asset has been sold or otherwise
disposed of, the consideration received therefor, together with interest on
any cash portion thereof on the same basis, shall be substituted for such
item.
"Covered Third-Party Assets" means any and all of the
following acquired by any Controlled AIMCO Entity from any Person other
than IPT, IPLP or a wholly-owned Subsidiary of IPT or IPLP at any time on
or prior to the Termination Date (including prior to the IFG Merger): (i)
equity securities or debt securities of, or other ownership interests in or
indebtedness of, any Controlled IPT Entity; (ii) assets, whether real or
personal, tangible or intangible, of any Controlled IPT Entity; (iii) any
other thing of value acquired from a Controlled IPT Entity; and (iv) cash
and non-cash distributions received in respect of the foregoing, together,
in the case of cash distributions, with a return thereon at an annual rate
of 10%, compounded annually, from the date of receipt thereof through the
Termination Date; provided that to the extent any item which would have
otherwise constituted a Covered Third-Party Asset has been sold or
otherwise disposed of, the consideration received therefor, together with
interest on any cash portion thereof on the same basis, shall be
substituted for such item.
"IPT Termination Share Value" means an amount equal to the
IPT Exchange Value, divided by the AIMCO Termination Share Value,
multiplied by the AIMCO Termination Reference Price.
"IPT Unwind Consideration" means any and all (i)
consideration delivered to IPT, IPLP and wholly-owned Subsidiaries of IPT
and IPLP in exchange for the Covered IPT Assets and (ii) cash and non-cash
distributions received in respect of the foregoing, together, in the case
of cash distributions, with a return thereon at an annual rate of 10%,
compounded annually, from the date of receipt thereof through the
Termination Date; provided that to the extent any item which would have
otherwise constituted IPT Unwind Consideration has been sold or otherwise
disposed of, the consideration received therefor, together with interest on
any cash portion thereof on the same basis, shall be substituted for such
item.
"Termination Date" means the date on which this
Agreement is terminated pursuant to Section 8.1.
"Third-Party Unwind Consideration" means, at the option of
the recipient, the number of fully paid, validly issued and non-assessable
IPT Common Shares or duly issued Common Partnership Units equal to the
Third-Party Unwind Price divided by the IPT Termination Share Value.
"Third-Party Unwind Price" means the aggregate fair value
of the consideration originally paid or delivered by the applicable
Controlled AIMCO Entity in exchange for the Covered Third-Party Assets,
plus interest thereon at an annual rate of 10%, compounded annually, from
the date of acquisition through the Termination Date, minus the aggregate
fair value of all cash and non-cash distributions received in respect of
the Covered Third-Party Assets, minus interest on the amount of cash
distributions at an annual rate of 10%, compounded annually, from the date
of receipt through the Termination Date; provided, however, that to the
extent any such consideration has been sold or otherwise disposed of, the
consideration received therefor, together with interest on any cash portion
thereof on the same basis, shall be substituted for such consideration.
(b) Third-Party Unwind. As soon as practicable after the
Termination Date, AIMCO shall transfer and assign, or cause to be
transferred or assigned, to IPT or IPLP, as determined by IPT, all of the
Covered Third-Party Assets, in exchange for which IPT or IPLP, as
determined by IPT, shall issue to AIMCO (or its designee) the Third-Party
Unwind Consideration; provided, however, that cash amounts due from each
party may be netted out.
(c) IPT Unwind. As soon as practicable after the Termination Date,
AIMCO shall assign and transfer, or cause to be assigned or transferred, to
IPT, IPLP or one of the wholly-owned Subsidiaries of IPT or IPLP, as
applicable, all of the Covered IPT Assets, in exchange for which IPT, IPLP
or one of the wholly-owned Subsidiaries of IPT or IPLP, as applicable,
shall return to the applicable Controlled AIMCO Entity the applicable IPT
Unwind Consideration; provided, however, that cash amounts due from each
party may be netted out.
(d) Limitation on Liability. Except as otherwise provided in this
Section 8.2 (including the other provisions of this Agreement set forth in
Section 8.2(e)), there shall be no liability or obligation on the part of
IPT or AIMCO or their respective officers, trustees or directors hereunder
after a termination; provided, however, the foregoing limitation on
liability shall not apply with respect to any party whose breach of any
representation, warranty, covenant or agreement is the basis for such
termination.
(e) Survival. The representations, warranties, covenants and
agreements contained in this Agreement shall not survive the termination
hereof except (i) to the extent a breach of any such representation,
warranty, covenant or agreement is the basis for such termination and (ii)
Section 6.1 (with respect to the period prior to Termination of this
Agreement), 6.7, 6.12, 6.13 and 6.14(a)(v) shall survive such termination
until the expiration of the applicable statutes of limitation and Sections
6.10(b), 6.10(c), 6.10(e) and 6.10(f) shall survive such termination for
two years.
Section 3. Amendment. This Agreement may be amended, modified and
supplemented in any and all respects, at any time before or after the IPT
Shareholders' Approval has been obtained and prior to the Effective Time,
only by a written instrument signed by AIMCO and a majority of the
Continuing Trustees, on behalf of IPT; provided, however, that after the
IPT Shareholders' Approval has been obtained, no such amendment,
modification or supplement shall, without the further approval of the IPT
Shareholders, (a) alter or change the amount or type of Merger
Consideration or any proceedings relating to the treatment of Outstanding
IPT Common Shares under Article II hereof or (b) alter or change any of the
other terms and conditions of this Agreement if such alterations or
changes, individually or in the aggregate, would adversely affect the
rights of IPT Shareholders.
Section 4. Waiver. At any time prior to the Closing Date, AIMCO or
IPT may (a) extend the time for the performance of any of the obligations
or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any of
the agreements or conditions of the other party contained herein, to the
extent permitted by applicable law. Any agreement on the part of a party to
any such extension or waiver shall be valid if set forth in an instrument
in writing signed on behalf of such party; provided, however, that in order
for any such extension or waiver by IPT to be valid and effective, such
instrument must be signed by a majority of the Continuing Trustees.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Survival of Representations, Warranties, Covenants and
Agreements. The representations, warranties, covenants and agreements
contained in this Agreement shall not survive the Effective Time, except
for Section 5.6 (which shall remain in effect until one year after the
Effective Time) and Sections 5.2(c), 5.8(e), 5.8(f), 6.1, 6.2(c), 6.7, 6.12
and 6.13 (which shall survive the Effective Time until the expiration of
the applicable statutes of limitation).
Section 2. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given (a) when delivered
personally, (b) one business day after delivered to a reputable overnight
courier service or (c) when sent via facsimile (which is confirmed by copy
sent within one business day by a reputable overnight courier service) to
the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) If to IPT, to:
Insignia Properties Trust
375 Park Avenue, Suite 3401
New York, New York 10152
Attn: Jeffrey P. Cohen
Facsimile: (212) 980-8544
Telephone: (212) 750-6070
with a copy (which shall not constitute notice) to:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attn: Arnold S. Jacobs
Facsimile: (212) 969-2900
Telephone: (212) 969-3210
(ii) If to AIMCO, to:
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attn: Peter K. Kompaniez
Facsimile: (303) 757-8735
Telephone: (303) 757-8101
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom, LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attn: Michael V. Gisser
Facsimile: (213) 687-5600
Telephone: (213) 687-5000
Section 3. Adjustment for Dilution. All references in this
Agreement to per share amounts and prices shall be equitably adjusted to
take into account any splits, combinations, equity dividends,
reclassifications and similar transactions, such that no party or IPT
Shareholder is any better or worse off than they would have been had such
transaction not occurred.
Section 4. Entire Agreement. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement and supersede all other
prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
Section 5. Assignment. This Agreement may not be assigned by
either party and any attempted assignment shall be void and of no effect.
Section 6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND SECTION 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND
RULES, EXCEPT TO THE EXTENT THAT SECTIONS 1.1, 1.2, 1.3, 1.4 AND 2.1(c) AND
(d) ARE EXPRESSLY GOVERNED BY OR DERIVE THEIR AUTHORITY FROM THE MCAA OR
THE MGCL.
Section 7. Interpretation. When reference is made in this
Agreement to Sections, Schedules or Exhibits, such reference shall be to a
Section, Schedule or Exhibit of this Agreement unless otherwise indicated.
The table of contents and headings contained in this Agreement are for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
Section 8. Counterparts; Effect. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 9. Parties' Interest. This Agreement shall be binding upon
each party hereto and shall inure solely to the benefit of each party
hereto and the IPT Shareholders. Except as provided in Sections 6.12 and
6.13, nothing in this Agreement, express or implied, is intended to confer
upon any third party, other than the IPT Shareholders, any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 10. Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. Accordingly, it is agreed that the parties shall be entitled to
an injunction or injunctions, in addition to any other remedy to which they
are entitled at law or in equity, to prevent breaches of this Agreement and
to specifically enforce the terms and provisions of this Agreement in any
Federal or state court located in the County of New York, State of New
York. In addition, each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of any Federal or state court located in the
County of New York, State of New York, in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that it shall not attempt to deny such personal
jurisdiction by motion or other request for leave from any such court and
(c) agrees that it shall not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other
than a Federal or state court sitting in the County of New York, State of
New York.
Section 11. Severability. The provisions of this Agreement shall
be deemed severable, and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity
or unenforceability, nor shall such invalidity or unenforceability affect
the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
Section 12. Letter Agreement. The letter agreement, dated October
14, 1997, as amended by the letter dated March 2, 1998, between AIMCO and
IFG, shall be deemed applicable (insofar as such agreement, as amended,
applies to Controlled IPT Entities) for a period of two years following a
breach by AIMCO of Section 6.12 of this Agreement.
Section 13. Knowledge. As used herein, the "knowledge"of IPT or
any Subsidiary of IPT shall mean the actual knowledge of any of Andrew L.
Farkas, James A. Aston, Frank M. Garrison, Ronald Uretta or Jeffrey P.
Cohen, and the "knowledge" of AIMCO or any Subsidiary of AIMCO shall mean
the actual knowledge of any of Terry Considine, Peter Kompaniez, Patrick
Foye, Thomas M. Toomey or (with respect to property-related matters only)
Harry G. Alcock.
Section 14. Breaches. Notwithstanding any other provision herein,
if at the time of execution of the Original Agreement or this Agreement,
AIMCO had or has actual knowledge of a breach of any representation or
warranty by IPT therein or herein, or IPT had or has actual knowledge of a
breach of any representation or warranty by AIMCO therein or herein, such
party shall be deemed to have waived such breach to the extent of its
actual knowledge of such breach at such time.
IN WITNESS WHEREOF, AIMCO and IPT have caused this Agreement to be
signed on their behalf as of the date first written above.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Patrick J. Foye
-------------------------------
Patrick J. Foye
Executive Vice President
INSIGNIA PROPERTIES TRUST
By:
------------------------------
Andrew L. Farkas
Continuing Trustee
By: /s/ James A. Aston
-------------------------------
James A. Aston
Continuing Trustee
By: /s/ Warren M. Eckstein
-------------------------------
Warren M. Eckstein
Continuing Trustee
By: /s/ Frank M. Garrison
-------------------------------
Frank M. Garrison
Continuing Trustee
By:
-------------------------------
Bryan L. Herrmann
Continuing Trustee
By: /s/ Jeffrey P. Cohen
-------------------------------
Jeffrey P. Cohen
Secretary
This Agreement is consented to by the undersigned as an amendment to
the First Amended and Restated Agreement.
TPI ACQUISITION TRUST
By: /s/ Patrick J. Foye
--------------------------------
Patrick J. Foye
Executive Vice President
EXHIBIT 3.3
INSIGNIA PROPERTIES TRUST
THIRD AMENDED AND RESTATED
BYLAWS
Effective December 7, 1998
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Trust
shall be located at such place or places as the Trustees may designate.
Section 2. ADDITIONAL OFFICES. The Trust may have additional
offices at such places as the Trustees may from time to time determine or
the business of the Trust may require.
Section 3. FISCAL AND TAXABLE YEARS. The fiscal and taxable
years of the Trust shall begin on January 1 and end on December 31.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE. All meetings of shareholders shall be held at
the principal office of the Trust or at such other place within the United
States as shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the
shareholders for the election of Trustees and the transaction of any
business within the powers of the Trust shall be held each year, at a
convenient location and on proper notice, on the date and at the time set
by the Trustees. The Trust shall use its efforts to hold its annual meeting
before June 30 of each year. Failure to hold an annual meeting at all or on
a timely basis does not invalidate the Trust's existence or affect any
otherwise valid acts of the Trust.
Section 3. SPECIAL MEETINGS. The Chairman of the Board or the
President may call special meetings of the shareholders. Special meetings
of shareholders may also be called by a majority of the Trustees or by the
secretary upon the written request of the holders of shares entitled to
cast not less than 25% of all the votes entitled to be cast at such
meeting. Such request shall state the purpose of such meeting and the
matters proposed to be acted on at such meeting. The secretary shall inform
such shareholders of the reasonably estimated cost of preparing and mailing
notice of the meeting and, upon payment by such shareholders to the Trust
of such costs, the secretary shall give notice to each shareholder entitled
to notice of the meeting.
Section 4. NOTICE. Not less than ten nor more than 60 days
before each meeting of shareholders, the secretary shall give to each
shareholder entitled to vote at such meeting and to each shareholder not
entitled to vote (but who is entitled to notice of the meeting) written or
printed notice stating the time and place of the meeting and, in the case
of a special meeting or as otherwise may be required by any statute, the
purpose for which the meeting is called, either by mail or by presenting it
to such shareholder personally or by leaving it at his or her residence or
usual place of business. If mailed, such notice shall be deemed to be given
when deposited in the United States mail addressed to the shareholder at
his post office address as it appears on the records of the Trust, with
postage thereon prepaid.
Section 5. SCOPE OF NOTICE. Any business of the Trust may be
transacted at an annual meeting of shareholders without being specifically
designated in the notice, except such business as is required by any
statute to be stated in such notice. No business shall be transacted at a
special meeting of shareholders except as specifically designated in the
notice.
Section 6. ORGANIZATION. At every meeting of the shareholders,
the Chairman of the Board, if there is one, shall conduct the meeting or,
in the case of vacancy in office or absence of the Chairman of the Board,
one of the following officers present shall conduct the meeting in the
order stated: the Vice Chairman of the Board, if there is one, the
President, the Vice Presidents in their order of rank and seniority, or a
Chairman chosen by the shareholders entitled to cast a majority of the
votes which all shareholders present in person or by proxy are entitled to
cast, shall serve as Chairman, and the Secretary, or, in his absence, an
assistant secretary, or in the absence of both the Secretary and assistant
secretaries, a person appointed by the Chairman shall serve as Secretary.
Section 7. QUORUM. At any meeting of shareholders, the presence
in person or by proxy of shareholders entitled to cast a majority of all
the votes entitled to be cast at such meeting shall constitute a quorum;
but this Section shall not affect any requirement under any statute or the
Declaration of Trust for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present at any meeting of
the shareholders, the shareholders entitled to vote at such meeting,
present in person or by proxy, shall have the power to adjourn the meeting
from time to time to a date not more than 120 days after the original
record date without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 8. VOTING. A majority of all the votes cast at a
meeting of shareholders duly called and at which a quorum is present shall
be sufficient to elect a Trustee. Each share may be voted for as many
individuals as there are Trustees to be elected and for whose election the
share is entitled to be voted. A majority of the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be
sufficient to approve any other matter which may properly come before the
meeting, unless more than a majority of the votes cast is required herein
or by statute or by the Declaration of Trust. Unless otherwise provided in
the Declaration of Trust, each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
Section 9. PROXIES. A shareholder may cast the votes entitled
to be cast by the shares owned of record by him, her or it, either in
person or by proxy executed in writing by the shareholder or by his, her or
its duly authorized attorney in fact. Such proxy shall be filed with the
secretary of the Trust before or at the time of the meeting. No proxy shall
be valid more than eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of the
Trust registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or a
proxy appointed by any of the foregoing individuals, unless some other
person who has been appointed to vote such shares pursuant to a bylaw or a
resolution of the governing board of such corporation or other entity or
agreement of the partners of the partnership presents a certified copy of
such bylaw, resolution or agreement, in which case such person may vote
such shares. Any trustee or other fiduciary may vote shares registered in
his, her or its name as such fiduciary, either in person or by proxy.
Shares of the Trust directly or indirectly owned by it shall
not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may
be voted and shall be counted in determining the total number of
outstanding shares at any given time.
The Trustees may adopt by resolution a procedure by which a
shareholder may certify in writing to the Trust that any shares registered
in the name of the shareholder are held for the account of a specified
person other than the shareholder. The resolution shall set forth the class
of shareholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to
be contained in it; if the certification is with respect to a record date
or closing of the share transfer books, the resolution shall state the time
after the record date or closing of the share transfer books within which
the certification must be received by the Trust; and any other provisions
with respect to the procedure which the Trustees consider necessary or
desirable. On receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the
certification, the shareholder of record of the specified shares in place
of the shareholder who makes the certification.
Section 11. INSPECTORS. At any meeting of shareholders, the
chairman of the meeting may, or upon the request of any shareholder shall,
appoint one or more persons as inspectors for such meeting. Such inspectors
shall ascertain and report the number of shares represented at the meeting
based upon their determination of the validity and effect of proxies, count
all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by
him or her or by a majority of them if there is more than one inspector
acting at such meeting. If there is more than one inspector, the report of
a majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the meeting
and the results of the voting shall be prima facie evidence thereof.
Section 12. NOMINATIONS AND SHAREHOLDER BUSINESS.
(a) ANNUAL MEETINGS OF SHAREHOLDERS.
(1) Nominations of persons for election to the Board of
Trustees and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (i)
pursuant to the Trust's notice of meeting, (ii) by or at the
direction of the Trustees or (iii) by any shareholder of the Trust
who was a shareholder of record at the time of giving of notice
provided for in this Section 12(a), who is entitled to vote at the
meeting and who complied with the notice procedures set forth in this
Section 12.
(2) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause
(iii) of paragraph (a)(1) of this Section 12, the shareholder must
have given timely notice thereof in writing to the secretary of the
Trust. To be timely, a shareholder's notice shall be delivered to the
secretary at the principal executive offices of the Trust not less
than 60 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is advanced by more than 30
days or delayed by more than 60 days from such anniversary date,
notice by the shareholder to be timely must be so delivered not
earlier than the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day prior to such
annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such
shareholder's notice shall set forth (i) each person whom the
shareholder proposes to nominate for election or reelection as a
Trustee; (ii) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such
business of such shareholder and of the beneficial owner, if any, on
whose behalf the proposal is made; and (iii) as to the shareholder
giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (x) the name and address of such
shareholder, as they appear on the Trust's books, and of such
beneficial owner and (y) the number of each class of shares of the
Trust which are owned beneficially and of record by such shareholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 12 to the contrary, in the event
that the number of Trustees to be elected to the Board of Trustees is
increased and there is no public announcement naming all of the
nominees for Trustee or specifying the size of the increased Board of
Trustees made by the Trust at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's
notice required by this Section 12(a) shall also be considered
timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary
at the principal executive offices of the Trust not later than the
close of business on the tenth day following the day on which such
public announcement is first made by the Trust.
(b) SPECIAL MEETINGS OF SHAREHOLDERS. Only such business shall
be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Trust's notice of meeting.
Nominations of persons for election to the Board of Trustees may be made at
a special meeting of shareholders at which Trustees are to be elected (i)
pursuant to the Trust's notice of meeting, (ii) by or at the direction of
the Board of Trustees or (iii) provided that the Board of Trustees has
determined that Trustees shall be elected at such special meeting, by any
shareholder of the Trust who was a shareholder of record at the time of
giving of notice provided for in this Section 12(b) and at the time of the
special meeting, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this Section 12(b). In the event
the Trust calls a special meeting of shareholders for the purpose of
electing one or more Trustees to the Board of Trustees, any such
shareholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Trust's notice of meeting, if
the shareholder's notice containing the information required by paragraph
(a)(2) of this Section 12 shall be delivered to the secretary at the
principal executive offices of the Trust not earlier than the 90th day
prior to such special meeting and not later than the close of business on
the later of the 60th day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Trustees to be
elected at such meeting.
(c) GENERAL. Only such persons who are nominated in accordance
with the procedures set forth in this Section 12 shall be eligible to serve
as Trustees and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 12. The presiding officer of
the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Section 12 and, if any
proposed nomination or business is not in compliance with this Section 12,
to declare that such defective nomination or proposal be disregarded.
Section 13. VOTING BY BALLOT. Voting on any question or in any
election may be via voice vote unless the presiding officer shall order or
any shareholder shall demand that voting be by ballot.
ARTICLE III
TRUSTEES
Section 1. GENERAL POWERS; QUALIFICATIONS; TRUSTEES HOLDING
OVER. The business and affairs of the Trust shall be managed under the
direction of its Board of Trustees. A Trustee shall be an individual at
least 21 years of age who is not under legal disability. In case of failure
to elect Trustees at an annual meeting of the shareholders, the Trustees
holding over shall continue to direct the management of the business and
affairs of the Trust until their successors are elected and qualify.
Section 2. ANNUAL AND REGULAR MEETINGS. An annual meeting of
the Trustees shall be held immediately after and at the same place as the
annual meeting of shareholders, no notice other than this Bylaw being
necessary. The Trustees may provide, by resolution, the time and place,
either within or without the State of Maryland, for the holding of regular
meetings of the Trustees without other notice than such resolution.
Section 3. SPECIAL MEETINGS. Special meetings of the Trustees
may be called by or at the request of the Chairman of the Board or the
President or by a majority of the Trustees then in office. The person or
persons authorized to call special meetings of the Trustees may fix any
place, either within or without the State of Maryland, as the place for
holding any special meeting of the Trustees called by them.
Section 4. NOTICE. Notice of any special meeting shall be given
by written notice delivered personally, by overnight courier or mailed to
each Trustee at his business or residence address or by telephone,
telegram, telex, facsimile transmission or similar means of same day
delivery. Notice personally delivered or sent by overnight courier shall be
given at least two days prior to the meeting. Notice by mail shall be given
at least five days prior to the meeting. Telephone, facsimile-transmission
or other same day delivery notice shall be given at least 24 hours prior to
the meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail properly addressed, with postage
thereon prepaid. If given by telegram, such notice shall be deemed to be
given when the telegram is delivered to the telegraph company. Telephone
notice shall be deemed given when the Trustee is personally given such
notice in a telephone call to which he is a party. Facsimile-transmission
notice shall be deemed given upon completion of the transmission of the
message to the number given to the Trust by the Trustee and receipt of a
completed answer-back indicating receipt. Neither the business to be
transacted at, nor the purpose of, any annual, regular or special meeting
of the Trustees need be stated in the notice, unless specifically required
by statute or these Bylaws.
Section 5. QUORUM. A majority of the entire Board of Trustees
shall constitute a quorum for transaction of business at any meeting of the
Trustees, provided that, if less than a majority of such Trustees are
present at said meeting, a majority of the Trustees present may adjourn the
meeting from time to time without further notice, and provided further that
if, pursuant to the Declaration of Trust or these Bylaws, the vote of a
majority of a particular group of Trustees is required for action, a quorum
must also include a majority of such group.
The Trustees present at a meeting which has been duly called
and convened may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Trustees to leave less than a
quorum.
Section 6. VOTING. (a) Except as provided in subsections (b)
and (c) of this Section 6, the action of the majority of the Trustees
present at a meeting at which a quorum is present shall be the action of
the Trustees, unless the concurrence of a greater proportion is required
for such action by applicable statute or Declaration of Trust.
(b) Notwithstanding anything in these Bylaws to the contrary,
any action pertaining to any transaction involving the Trust, including the
purchase, sale, lease, or mortgage of any real estate asset or any other
transaction, in which a Trustee or officer of the Trust, or any Affiliate
(as defined in the Declaration of Trust of the Trust) of any of the
foregoing persons, has any direct or indirect interest other than solely as
a result of his status as a Trustee, officer, or shareholder of the Trust,
must be approved by a majority of disinterested Trustees.
(c) Notwithstanding the general power of the Board of Trustees
to manage the business and affairs of the Trust and anything else in these
Bylaws to the contrary, the Board of Trustees shall not take any action and
shall not permit the Trust to take any action of any nature with respect to
any of the matters described in (i) through (vii) below without the
approval of a majority of the Continuing Trustees (as defined below):
(i) Making any determination to be made with respect to,
or waiver or amendment of any term or condition of, the Agreement and
Plan of Merger, dated as of October 1, 1998 (the "Merger Agreement"),
between Apartment Investment and Management Company, a Maryland
corporation ("AIMCO"), and the Trust;
(ii) Taking any action on the part of the Trust with
respect to matters contemplated in Section 8.1(c)(ii) of the Merger
Agreement;
(iii) Directing the enforcement of any employment
agreements, consulting agreements, retention agreements or any
restricted share agreements with employees of or consultants to the
Trust, provided the agreements are in existence on October 1, 1998;
(iv) Approving any amendment to or waiver with respect to
the Fourth Amended and Restated Agreement of Limited Partnership of
Insignia Properties, L.P., a Delaware limited partnership, as the
same may be amended from time to time;
(v) Approving any amendment to the Declaration of Trust
of the Trust or these Bylaws (except for Article XIII, Section 2
which may be amended without approval of a majority of the Continuing
Trustees);
(vi) Making any loans or advances of monies to be made by
the Trust or any of its subsidiaries to AIMCO or any of its
subsidiaries; and
(vii) Declaring dividends on any shares of beneficial
ownership of the Trust.
The Continuing Trustees shall be empowered to direct the grant of up 10,000
restricted IPT shares under the Trust's 1997 Share Incentive Plan (the
"Plan"), subject to the approval of the Compensation Committee to the
extent required by the Plan, or to direct the payment of up to $132,500
cash compensation (any such awards of cash compensation hereunder will
reduce pro rata the number of IPT shares that the Continuing Trustees may
grant). The Continuing Trustees shall be entitled to retain, at the Trust's
expense, their own legal, financial and other advisors as they deem
appropriate. The Continuing Trustees shall be entitled to direct the Trust
to make payment and to write and sign checks on behalf of the Trust, to
make payment to such legal, financial and other advisors and with respect
to other amounts payable by the Trust in connection with the matters
described in items (i) through (vii) above. A special account of the Trust
at a financial institution acceptable to the Continuing Trustees shall be
made available to them and funded in such amounts as they request for that
purpose. The Continuing Trustees may act by majority, with or without a
meeting. The Continuing Trustees shall have the power to initiate action
with respect to those matters as to which a right of approval is reserved
to them under this section. Notwithstanding any other provisions of the
these Bylaws, any rights of approval over actions of the Trust and any
powers granted to the Continuing Trustees under these Bylaws shall
terminate January 1, 2002 or, if earlier, on the date the Merger Agreement
is terminated pursuant to Section 8.1(c)(iii) thereof (the earlier of such
dates, the "Reshuffling Date").
Section 7. TELEPHONE MEETINGS. Trustees may participate in a
meeting by means of a conference telephone or similar communications
equipment if all persons participating in the meeting are able, at all
times, to hear one another. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section 8. INFORMAL ACTION BY TRUSTEES. Any action required or
permitted to be taken at any meeting of the Trustees may be taken without a
meeting, if a consent in writing to such action is signed by all Trustees
and such written consent is filed with the minutes of proceedings of the
Trustees.
Section 9. VACANCIES. If for any reason any or all the Trustees
cease to be Trustees, such event shall not terminate the Trust or affect
these Bylaws or the powers of the remaining Trustees hereunder (even if
fewer than two Trustees remain). Any vacancy (including a vacancy created
by removal of a Trustee or by an increase in the number of Trustees) may be
filled, at any regular meeting or at any special meeting called for that
purpose, by the remaining Trustees in accordance with Section 2.3 of the
Declaration of Trust. Any individual so elected as Trustee shall hold
office for the unexpired term of the class of Trustees to which he or she
is elected. In the event that, at any time, a Continuing Trustee ceases to
be a Trustee for any reason (including removal for cause), the vacancy
created thereby shall be filled in accordance with the Declaration of Trust
but only with an individual nominated and approved by a majority of the
remaining Continuing Trustees. In the event than an AIMCO-nominated Trustee
(as defined below) shall cease to be a Trustee for any reason (including
removal for cause), except one whose seat is vacated by acceptance of his
or her resignation as contemplated by Section 18 of this Article III, the
vacancy created thereby shall be filled in accordance with the Declaration
of Trust but only with an individual nominated and approved by the
remaining AIMCO-nominated Trustees. A person shall be eligible for service
as an AIMCO-nominated Trustee only if he or she has delivered to the Trust,
in form and substance satisfactory to a majority of the Continuing
Trustees, a signed and undated resignation as Trustee which will according
to its terms be effective without further action by the Trust or such
person when accepted by the Continuing Trustees in accordance with Section
18 of this Article III.
Section 10. COMPENSATION. Trustees shall not receive any stated
salary for their services as Trustees but, by resolution of the Trustees,
may receive a fixed sum of cash and/or common shares of beneficial interest
of the Trust (or options to acquire shares) per year and/or per visit to
real property owned or to be acquired by the Trust and for any service or
activity they performed or engaged in as Trustees. Trustees may be
reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Trustees or of any committee thereof; and for their
expenses, if any, in connection with each property visit and any other
service or activity performed or engaged in as Trustees; but nothing herein
contained shall be construed to preclude any Trustees from serving the
Trust in any other capacity and receiving compensation therefor.
Section 11. REMOVAL OF TRUSTEES. The shareholders may, at any
time, remove any Trustee in the manner provided in the Declaration of
Trust.
Section 12. LOSS OF DEPOSITS. No Trustee shall be liable for
any loss which may occur by reason of the failure of the bank, trust
company, savings and loan association, or other institution with whom
moneys or shares have been deposited.
Section 13. SURETY BONDS. Unless required by law, no Trustee
shall be obligated to give any bond or surety or other security for the
performance of any of his duties.
Section 14. RELIANCE. Each Trustee, officer, employee and agent
of the Trust shall, in the performance of his or her duties with respect to
the Trust, be fully justified and protected with regard to any act or
failure to act in reliance in good faith upon the books of account or other
records of the Trust, upon an opinion of counsel or upon reports made to
the Trust by any of its officers or employees or by the adviser,
accountants, appraisers or other experts or consultants selected by the
Trustees or officers of the Trust, regardless of whether such counsel or
expert may also be a Trustee.
Section 15. NUMBER AND QUALIFICATIONS. The number of Trustees
of the Trust shall be 11. The Trustees shall be classified, with respect to
the terms for which they severally hold office, into separate classes, if
and in the manner prescribed in the Trust's Declaration of Trust. In the
event that the Board of Trustees amends these Bylaws to decrease the number
of Trustees, the tenure of office of a Trustee shall not be affected by any
decrease in the number of Trustees. Trustees need not be shareholders of
the Trust.
Section 16. INTERESTED TRUSTEE TRANSACTIONS. Section 2-419 of
the Maryland General Corporation Law (the "MGCL") shall be available for
and apply to any contract or other transaction between the Trust and any of
its Trustees or between the Trust and any other trust, corporation, firm or
other entity in which any of its Trustees is a trustee or director or has a
material financial interest.
Section 17. TRUSTEE DESIGNATIONS. "Continuing Trustee" means
(A) each of the following Trustees who were members of the Board of
Trustees on October 1, 1998, when the Board of Trustees acted to approve
this amendment and restatement of these Bylaws: Andrew L. Farkas, James A.
Aston, Frank M. Garrison, Warren M. Eckstein and Bryan L. Herrmann; and (B)
each successor Trustee to each of the foregoing, provided that such
successor is approved by a majority of the other Continuing Trustees.
"AIMCO-nominated Trustee" means (A) each Trustee elected to the Board of
Trustees on October 1, 1998 pursuant to the Merger Agreement; and (B) each
successor Trustee to each of the foregoing, provided that such successor is
approved by a majority of the other AIMCO-nominated Trustees.
Section 18. AGREED RESIGNATIONS. On and after the Reshuffling
Date, the Continuing Trustees shall be entitled, acting by a majority, to
accept sufficient number of the resignations theretofore submitted by the
AIMCO-nominated Trustees in accordance with the last sentence of Section 9
of this Article III, and to fill the vacancies created thereby with their
own nominees, in order that the Continuing Trustees shall thereafter
constitute a majority of the Board of Trustees. After the second annual
meeting of shareholders of the Trust occurring after the Reshuffling Date,
that privilege shall terminate. Thereafter, the Continuing Trustees shall
be entitled to approve and nominate individuals to stand for election to
the Board of Trustees to occupy seats previously held by Continuing
Trustees and to occupy one less than a majority of the Board of Trustees,
but such nominees must be reasonably acceptable to the Trust, it being
understood that any Continuing Trustee choosing to continue to serve as a
Trustee shall be acceptable.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS; VACANCIES. The
Board of Trustees may appoint from among its members an Executive Committee
and other committees comprised of two or more Trustees.
Notice of committee meetings shall be given in the same manner
as notice for special meetings of the Board of Trustees.
Subject to the provisions hereof, the Board of Trustees shall
have the power at any time to change the membership of any committee, to
fill all vacancies, to designate alternative members to replace any absent
or disqualified member, or to dissolve any such committee.
Section 2. POWERS. The Trustees may delegate to committees
appointed under Section 1 of this Article any of the powers of the
Trustees, except as prohibited by law.
Section 3. MEETINGS. One-third, but not less than two, of the
members of any committee shall be present in person at any meeting of such
committee in order to constitute a quorum for the transaction of business
at such meeting, and the act of a majority present shall be the act of such
committee.
Each committee shall keep minutes of its proceedings and shall
report the same to the Board of Trustees at the meeting next succeeding,
and any action by the committees shall be subject to revision and
alteration by the Board of Trustees, provided that no rights of third
persons shall be affected by any such revision or alteration.
Section 4. TELEPHONE MEETINGS. Members of a committee of the
Trustees may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the
meeting are able, at all times, to hear one another. Participation in a
meeting by these means shall constitute presence in person at the meeting.
Section 5. INFORMAL ACTION BY COMMITTEES. Any action required
or permitted to be taken at any meeting of a committee of the Trustees may
be taken without a meeting, if a consent in writing to such action is
signed by all members of the committee and such written consent is filed
with the minutes of proceedings of such committee.
Section 6. STANDING COMMITTEES.
(a) EXECUTIVE COMMITTEE. Until January 1, 2002, the Board of
Trustees shall appoint and maintain an Executive Committee comprising of
the Trustees designated in the Merger Agreement, each of whose successors
on the Executive Committee shall be appointed only with the approval of a
majority of the AIMCO-nominated Trustees. Subject to the limitations set
forth in Section 2.8 of the Declaration of Trust, the Executive Committee
shall be authorized to act with respect to all matters relating to the
general management of the Trust except for such matters as are specifically
referred to other committees appointed pursuant to these Bylaws.
(b) AIMCO COMMITTEE. Until January 1, 2002, the Board of
Trustees shall appoint and maintain an AIMCO Committee comprised of at
least two of the AIMCO-nominated Trustees. The AIMCO Committee shall be
authorized, empowered and directed to act on behalf of the Board of
Trustees with respect to all matters and all actions required or desired to
be taken by the Trust related to all (i) transactions between the Trust or
its subsidiaries and AIMCO or its subsidiaries other than those described
in items (i), (ii) and (vi) of Article III, Section 6(c) of these Bylaws,
(ii) offers by AIMCO or its affiliates to purchase limited partnership
interests in limited partnerships that are controlled by or affiliated with
the Trust or controlled by Winthrop Financial Associates, (iii) public
announcements and (iv) filings with governmental authorities.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Trust may
consist of a Chairman of the Board, a Vice Chairman of the Board, one or
more Chief Operating Officers, a President, one or more Vice Presidents, a
Treasurer, one or more Assistant Treasurers, a Secretary, and one or more
Assistant Secretaries. In addition, the Trustees may from time to time
appoint such other officers with such powers and duties as they shall deem
necessary or desirable. The officers of the Trust shall be elected annually
by the Trustees at the first meeting of the Trustees held after each annual
meeting of shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until his or her successor is
elected and qualified or until his or her death, resignation or removal in
the manner hereinafter provided. Any two or more offices (except President
and Vice President or President and Secretary) may be held by the same
person. In their discretion, the Trustees may leave unfilled any office
except that of President and Secretary. Election of an officer or agent
shall not of itself create contract rights between the Trust and such
officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Trust may be removed by the Trustees if in their judgment the best
interests of the Trust would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Any officer of the Trust may resign at any time by giving written notice of
his or her resignation to the Trustees, the Chairman of the Board, the
President or the Secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall
become effective is not specified therein, immediately upon its receipt.
The acceptance of a resignation shall not be necessary to make it effective
unless otherwise stated in the resignation. Such resignation shall be
without prejudice to the contract rights, if any, of the Trust.
Section 3. VACANCIES. A vacancy in any office may be filled by
the Trustees for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Trustees may designate
a chief executive officer from among the elected officers. The Chief
Executive Officer shall have responsibility for implementation of the
policies of the trust, as determined by the Trustees, and for the
administration of the business affairs of the Trust. In the absence of both
the Chairman and the Vice Chairman of the Board, the Chief Executive
Officer shall preside over the meetings of the Trustees and of the
shareholders at which he or she shall be present.
Section 5. CHIEF OPERATING OFFICER. The Trustees may designate
one or more Chief Operating Officers from among the elected officers. Said
officer will have the responsibilities and duties as set forth by the
Trustees.
Section 6. CHIEF FINANCIAL OFFICER. The Trustees may designate
a Chief Financial Officer from among the elected Officers. Said officer
will have the responsibilities and duties as set forth by the Trustees or
the Chief Executive Officer.
Section 7. CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The
Chairman of the Board shall preside over the meetings of the Trustees and
of the shareholders at which he or she shall be present and shall in
general oversee all of the business and affairs of the Trust. In the
absence of the Chairman of the Board, the Vice Chairman of the Board shall
preside at such meetings at which he shall be present. The Chairman and the
Vice Chairman of the Board may execute any deed, mortgage, bond, contract
or other instrument, except in cases where the execution thereof shall be
expressly delegated by the Trustees or by these Bylaws to some other
officer or agent of the Trust or shall be required by law to be otherwise
executed. The Chairman of the Board and the Vice Chairman of the Board
shall perform such other duties as may be assigned to him or her or them by
the Trustees.
Section 8. PRESIDENT. In the absence of the Chairman, the Vice
Chairman of the Board and the Chief Executive Officer, the President shall
preside over the meetings of the Trustees and of the shareholders at which
he or she shall be present. In the absence of a designation of a Chief
Executive Officer by the Trustees, the President shall be the Chief
Executive Officer and shall be ex officio a member of all committees that
may, from time to time, be constituted by the Trustees. The President may
execute any deed, mortgage, bond, contract or other instrument, except in
cases where the execution thereof shall be expressly delegated by the
Trustees or by these Bylaws to some other officer or agent of the Trust or
shall be required by law to be otherwise executed; and in general shall
perform all duties incident to the office of president and such other
duties as may be prescribed by the Trustees from time to time.
Section 9. VICE PRESIDENTS. In the absence of the President or
in the event of a vacancy in such office, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the
order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties
of the President and when so acting shall have all the powers of and be
subject to all the restrictions upon the President; and shall perform such
other duties as from time to time may be assigned to him by the President
or by the Trustees. The Trustees may designate one or more Vice Presidents
as Executive Vice President or as Vice President for particular areas of
responsibility.
Section 10. SECRETARY. The Secretary shall (a) keep the minutes
of the proceedings of the shareholders, the Trustees and the committees of
the Trustees in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the trust records and of
the seal of the Trust; (d) keep a register of the post office address of
each shareholder which shall be furnished to the secretary by such
shareholder; (e) have general charge of the share transfer books of the
Trust; and (f) in general perform such other duties as from time to time
may be assigned to him or her by the Chief Executive Officer, the President
or by the Trustees.
Section 11. TREASURER. The Treasurer shall have the custody of
the funds and securities of the Trust and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Trust and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Trust in such depositories as may be designated by the
Trustees.
The Treasurer shall disburse the funds of the Trust as may be
ordered by the Trustees, taking proper vouchers for such disbursements, and
shall render to the president and Trustees, at the regular meetings of the
Trustees or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the Trust.
If required by the Trustees, the Treasurer shall give the Trust
a bond in such sum and with such surety or sureties as shall be
satisfactory to the Trustees for the faithful performance of the duties of
the Treasurer's office and for the restoration to the Trust, in case of his
or her death, resignation, retirement or removal from office, of all books,
papers, vouchers, moneys and other property of whatever kind in his or her
possession or under his or her control belonging to the Trust.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or Treasurer,
respectively, or by the president or the Trustees. The Assistant Treasurers
shall, if required by the Trustees, give bonds for the faithful performance
of their duties in such sums and with such surety or sureties as shall be
satisfactory to the Trustees.
Section 13. SALARIES. The salaries of the officers shall be
fixed from time to time by the Trustees and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a Trustee.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Trustees may authorize any officer or
agent to enter into any contract or to execute and deliver any instrument
in the name of and on behalf of the Trust and such authority may be general
or confined to specific instances. Any agreement, deed, mortgage, lease or
other document executed by one or more of the Trustees or by an authorized
person shall be valid and binding upon the Trustees and upon the Trust when
authorized or ratified by action of the Trustees.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Trust shall be signed by such officer or
officers, agent or agents of the Trust in such manner as shall from time to
time be determined by the Trustees.
Section 3. DEPOSITS. All funds of the Trust not otherwise
employed shall be deposited from time to time to the credit of the Trust in
such banks, trust companies or other depositories as the Trustees may
designate.
ARTICLE VII
SHARES
Section 1. CERTIFICATES. Each shareholder shall be entitled to
a certificate or certificates which shall represent and certify the number
of shares of each class of beneficial interests held by him or her in the
Trust. Each certificate shall be signed by the Chief Executive Officer, the
President or a Vice President and countersigned by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer and may be
sealed with the seal, if any, of the Trust. The signatures may be either
manual or facsimile. Certificates shall be consecutively numbered; and if
the Trust shall, from time to time, issue several classes of shares, each
class may have its own number series. A certificate is valid and may be
issued whether or not an officer who signed it is still an officer when it
is issued. Each certificate representing shares which are restricted as to
their transferability or voting powers, which are preferred or limited as
to their dividends or as to their allocable portion of the assets upon
liquidation or which are redeemable at the option of the Trust, shall have
a statement of such restriction, limitation, preference or redemption
provision, or a summary thereof, plainly stated on the certificate. In lieu
of such statement or summary, the Trust may set forth upon the face or back
of the certificate a statement that the Trust will furnish to any
shareholder, upon request and without charge, a full statement of such
information.
Section 2. TRANSFERS. Certificates shall be treated as
negotiable, and title thereto and to the shares they represent shall be
transferred by delivery thereof to the same extent as those of a Maryland
stock corporation. No transfers of shares of the Trust shall be made if (i)
void ab initio pursuant to any provision of the Declaration of Trust or
(ii) the Board of Trustees, pursuant to any provision of the Declaration of
Trust, shall have refused to permit the transfer of such shares. Permitted
transfers of shares of the Trust shall be made on the share records of the
Trust only upon the instruction of the registered holder thereof, or by his
or her attorney thereunto authorized by power of attorney duly executed and
filed with the secretary or with a transfer agent or transfer clerk, and
upon surrender of the certificate or certificates, if issued, for such
shares properly endorsed or accompanied by a duly executed share transfer
power and the payment of all taxes thereon. Upon surrender to the Trust or
the transfer agent of the Trust of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, as to any transfers not prohibited by any provision of the
Declaration of Trust or by action of the Board of Trustees thereunder, it
shall be the duty of the Trust to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by
the Trustees may direct a new certificate to be issued in place of any
certificate previously issued by the Trust alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. When
authorizing the issuance of a new certificate, the officer designated by
the Trustees may, in his or her discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to advertise the same in
such manner as he or she shall require and/or to give bond, with sufficient
surety, to the Trust to indemnify it against any loss or claim which may
arise as a result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
The Trustees may set, in advance, a record date for the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or determining shareholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of shareholders for any other purpose. Such date, in any
case, shall not be prior to the close of business on the day the record
date is fixed and shall be not more than 90 days and, in the case of a
meeting of shareholders not less than ten days, before the date on which
the meeting or particular action requiring such determination of
shareholders of record is to be held or taken.
In lieu of fixing a record date, the Trustees may provide that
the share transfer books shall be closed for a stated period but not longer
than 20 days. If the share transfer books are closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten days before the
date of such meeting.
If no record date is fixed and the share transfer books are not
closed for the determination of shareholders, (a) the record date for the
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever
is the closer date to the meeting; and (b) the record date for the
determination of shareholders entitled to receive payment of a dividend or
an allotment of any other rights shall be the close of business on the day
on which the resolution of the Trustees, declaring the dividend or
allotment of rights, is adopted.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except when (i) the
determination has been made through the closing of the transfer books and
the stated period of closing has expired or (ii) the meeting is adjourned
to a date more than 120 days after the record date fixed for the original
meeting, in either of which case a new record date shall be determined as
set forth herein.
Section 5. STOCK LEDGER. The Trust shall maintain at its
principal office or at the office of its counsel, accountants or transfer
agent, an original or duplicate share ledger containing the name and
address of each shareholder and the number of shares of each class held by
such shareholder.
Section 6. FRACTIONAL SHARES; ISSUANCE OF UNITS. The Trustees
may issue fractional shares or provide for the issuance of scrip, all on
such terms and under such conditions as they may determine. Notwithstanding
any other provision of the Declaration of Trust or these Bylaws, the
Trustees may issue units consisting of different securities of the Trust.
Any security issued in a unit shall have the same characteristics as any
identical securities issued by the Trust, except that the Trustees may
provide that for a specified period securities of the Trust issued in such
unit may be transferred on the books of the Trust only in such unit.
ARTICLE VIII
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions
upon the shares of the Trust may be authorized and declared by the
Trustees, subject to the provisions of law and the Declaration of Trust.
Dividends may be paid in cash, property or shares of the Trust, subject to
the provisions of law and the Declaration of Trust.
Section 2. CONTINGENCIES. Before payment of any dividends,
there may be set aside out of any funds of the Trust available for
dividends such sum or sums as the Trustees may from time to time, in their
absolute discretion, think proper as a reserve fund for contingencies, for
equalizing dividends, for repairing or maintaining any property of the
Trust or for such other purpose as the Trustees shall determine to be in
the best interest of the Trust, and the Trustees may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE IX
SEAL
Section 1. SEAL. The Trustees may authorize the adoption of a
seal by the Trust. The seal shall have inscribed thereon the name of the
Trust and the year of its formation. The Trustees may authorize one or more
duplicate seals and provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Trust is required to
place its seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a seal to place the
word "(SEAL)" adjacent to the signature of the person authorized to execute
the document on behalf of the Trust.
ARTICLE X
INDEMNIFICATION AND ADVANCE FOR EXPENSES
(a) Any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative
(whether or not by or in the right of the Trust), by reason of the fact
that he or she is or was a Trustee, officer, incorporator, employee, or
agent of the Trust, or is or was serving at the request of the Trust as a
director, officer, incorporator, employee, partner, trustee, member or
agent of another corporation, partnership, joint venture, trust, or other
enterprise (including an employee benefit plan), shall be entitled to be
indemnified by the Trust to the fullest extent then permitted by Maryland
law against expenses (including attorney's fees and disbursements),
judgments, fines (including excise taxes assessed on a person with respect
to an employee benefit plan), and amounts paid in settlement incurred by
him or her in connection with such action, suit or proceeding. Neither the
amendment nor repeal of this Article X, nor the adoption or amendment of
any other provision of these Bylaws or the Declaration of Trust
inconsistent with this Article X, shall apply to or affect in any respect
the applicability of the indemnification provided for herein with respect
to any act or failure to act which occurred prior to such amendment, repeal
or adoption. Such right of indemnification shall continue as to a person
who has ceased to be a Trustee, director, officer, incorporator, employee,
partner, trustee, member or agent, and shall inure to the benefit of the
heirs, executors, and administrators of such a person. The indemnification
provided by this Article X shall not be deemed exclusive of any other
rights which may be provided now or in the future under any provision
currently in effect or hereafter adopted in these Bylaws, the Declaration
of Trust, by any agreement, by vote of Shareholders, by resolution of
disinterested Trustees, by provision of law, or otherwise. The Board of
Trustees may take such actions as it may from time to time deem necessary
or appropriate to carry out these indemnification provisions, and is
expressly empowered to adopt, approve and amend from time to time such
bylaws, resolutions or contracts implementing such provisions or such
further indemnification arrangements as may be permitted by laws.
Notwithstanding the foregoing, the Trust shall be required to indemnify a
person in connection with a proceeding initiated by such person only if
such proceeding was authorized by the Board of Trustees.
(b) The Trust shall advance any person who is eligible for
reasonable expenses incurred by such person who is a party to a proceeding
prior to the final disposition of the proceeding upon receipt by the Trust
of (i) a written affirmation by such person of such person's good faith
belief that the standard of conduct necessary for indemnification by the
Trust as authorized in this Article X has been met and (ii) a written
undertaking by or on behalf of such person to repay the amount if it shall
ultimately be determined that the standard of conduct has not been met.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the
Declaration of Trust or Bylaws or pursuant to applicable law, a waiver
thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be
transacted at nor the purpose of any meeting need be set forth in the
waiver of notice, unless specifically required by statute. The attendance
of any person at any meeting shall constitute a waiver of notice of such
meeting, except where such person attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
ARTICLE XII
AMENDMENT OF BYLAWS
The Trustees shall have the exclusive power to adopt, alter or
repeal any provision of these Bylaws and to make new Bylaws; provided,
however, that no amendment, alteration or repeal of any provision of these
Bylaws will be made, and no other Bylaws will be made or adopted, without
the approval of a majority of the Continuing Trustees (except for Article
XIII, Section 2 which may be amended without approval of a majority of the
Continuing Trustees); and provided further that any amendment to Article
III, Section 6(b) shall require the affirmative vote of at least a majority
of shareholders entitled to vote thereon.
ARTICLE XIII
MISCELLANEOUS
Section 1. DECLARATION OF TRUST. All references to the
Declaration of Trust shall include any amendments thereto.
Section 2. EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE.
The acquisition of shares of beneficial interest of the Trust by AIMCO
occurring as a result of the merger of Insignia Financial Group, Inc., a
Delaware corporation ("IFG"), with and into AIMCO, pursuant to the Amended
and Restated Agreement and Plan of Merger, dated as of May 26, 1998, among
IFG, AIMCO and the other parties named therein, shall be exempt from the
provisions of Title 3, Subtitle 7 of the MGCL.
Section 3. EXEMPTION FROM OWNERSHIP LIMIT. Pursuant to Section
6.12(b) of the Declaration of Trust, the Board of Trustees hereby does
exempt AIMCO from the Ownership Limit.
EXHIBIT 10.1
AMENDED AND RESTATED
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AMENDED AND RESTATED ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Assignment"), entered into this 7th day of December, 1998, amends and
restates the Assignment and Assumption Agreement (the "Original
Agreement"), dated as of October 1, 1998 by and among Insignia Properties,
L.P., a Delaware limited partnership ("Assignor"), and AIMCO Properties,
L.P., a Delaware limited partnership ("Assignee") (each party to this
Assignment, a "Party").
WITNESSETH
WHEREAS, Assignor and Assignee wish to amend and restate the Original
Agreement to transfer from Assignor to Assignee all of Assignor's economic
rights under Assignor's assets (excluding those assets set forth on
Schedule A hereto) (the "Underlying Assets"), such that the only assets
transferred pursuant hereto constitute Assignor's right, title and interest
in and to the profits and losses granted and all other economic rights
granted to and under the Underlying Assets (the "Assets"); and
WHEREAS, Assignor and Assignee entered into the Original Agreement in
order to comply with the Amended and Restated Agreement and Plan of Merger,
dated as of May 26, 1998, among Insignia Financial Group, Inc. (the parent
corporation of the general partner of the Assignor) and Apartment
Investment and Management Company (the parent corporation of the general
partner of the Assignee).
NOW, THEREFORE, in consideration of the foregoing and the covenants
of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the terms and conditions set forth herein, the
parties hereby agree as follows:
1. Assignor hereby transfers, assigns, contributes and sets over to
the Assignee all of the Assignor's right, title and interest to and under
each of the Assets, effective as of October 1, 1998, subject to the rights
of third parties thereto including, without limitation, the rights of First
Union National Bank ("First Union") under that certain Credit Agreement,
dated as of December 30, 1997, among Assignor, Lehman Commercial Paper
Inc., as lending agent, First Union, as administrative agent, and the
lenders from time to time party thereto (the "First Union Credit
Agreement"), and the Pledge and Security Agreement, dated as of December
30, 1997, related thereto (collectively with the First Union Credit
Agreement, the "First Union Agreements").
2. Assignee agrees to assume and be liable for each and every duty
and obligation of Assignor related to the Underlying Assets including, but
not limited to, those duties and obligations that accrued prior to the date
of the Original Agreement and to cause Assignor to comply in full with its
obligations under all agreements with third parties including, without
limitation, the First Union Agreements.
3. Subject to the rights of third parties including, without
limitation, First Union, and as between Assignor on the one hand and
Assignee on the other hand, Assignor is released from all duties and
obligations of Assignor related to the Underlying Assets and accruing after
the date of the Original Agreement. Assignor shall remain liable for all
duties and obligations of Assignor related to the Assets and accruing
before the date of the Original Agreement.
4. The consideration for the assignment of the Assets pursuant to
this Assignment consists of the issuance by Assignee of Common Partnership
Units in Assignee (the "Consideration"). Prior to the transfer of the
Assets the Parties agreed that the calculation of the Consideration shall
be as follows:
a) first, Ernst & Young LLP shall determine the total asset value
of Insignia Properties Trust, a Maryland real estate investment
trust ("IPT"), by calculating the total market capitalization
of IPT and adding to such amount the total amount of corporate
level indebtedness,
b) second, the value of the Assignor is calculated by subtracting
from the value of IPT, the value of all other subsidiaries of
IPT and all assets owned directly by IPT, and dividing such
result by the fraction of the Assignor owned by IPT,
c) third, the value of the Underlying Assets is calculated by
subtracting from the value of the Assignor the value of the
assets owned by Assignor not transferred to Assignee, and
adding to such result the amount of indebtedness of Assignor
not assumed by Assignee, and
d) finally, the Consideration is calculated by dividing the value
of the Underlying Assets by the fair value of the Common
Partnership Units in Assignee (which is deemed to be $37.75,
the closing price of Common Stock of Apartment Investment and
Management Company on the trading day immediately preceding the
effectiveness of the transfer).
5. The calculation in paragraph 4 resulted in an Underlying Asset
value of $386,161,468 and total Consideration of 10,229,443 Common
Partnership Units of Assignee.
6. The Parties have each determined, using their sound business
judgment and considering their fiduciary duties to the limited partners of
the respective Party, that (i) the assignment contemplated by this
Assignment is in the best interests of each Party and each Party's limited
partners, and (ii) the Consideration constitutes fair value for the Assets.
7. (a) In the event that any Assets were issued in the name of First
Union, as security agent under the First Union Agreements, but were
beneficially owned by the Assignor ("Pledged Assets"), following the
transfer provided for herein, such Pledged Assets shall be held
beneficially by the Assignee but shall remain in the name of First Union,
as security agent.
(b) Any voting rights of First Union with respect to any
Pledged Assets shall be retained by First Union notwithstanding the
transfers contemplated hereby.
(c) Any Pledged Assets in the physical possession of First
Union shall remain in the physical possession of First Union following the
transfers contemplated hereby.
8. Except as otherwise provided herein, Assignor agrees to exercise
any residual powers remaining in the Underlying Assets solely in favor of
and in the interest of the Assignee.
9. Each Party will execute such further documents and instruments and
take such further actions, including the application for any necessary
regulatory approvals or exemptions, as may reasonably be requested by the
other Party in order to consummate the transfers contemplated hereby. If
any agreement restricts or prohibits the transfer of any Assets, all Assets
not subject to such restrictions or prohibition shall be transferred and
all Assets subject to such restrictions or prohibition shall be transferred
to the maximum extent permitted by such agreement.
10. This Assignment shall be binding upon, inure to the benefit of,
and be enforceable by each Party and its permitted successors and assigns,
and shall inure to the further benefit of, and be enforceable by, any
assignee of the Assets.
11. THIS ASSIGNMENT SHALL BE INTERPRETED, GOVERNED, AND CONSTRUED
UNDER THE LAWS OF THE STATE OF DELAWARE.
12. Any amendment or waiver to this Assignment must be in writing and
signed by the Parties in the case of an amendment or by the waiving Party
in the case of a waiver.
13. This Assignment fully expresses the Parties' agreement concerning
the subject matter hereof and supersedes any prior agreements or
understanding regarding the same subject matter. This Assignment amends and
restates the Original Agreement and the Original Agreement is of no further
force or effect.
14. This Assignment may be executed in multiple counterparts, all of
which together shall constitute a single instrument, and it shall not be
necessary that any counterpart be signed by all the Parties. The
signatories hereto represent that they have been duly authorized to enter
into this Assignment on behalf of the respective Parties for whom they
sign.
* * * * *
IN WITNESS WHEREOF, the Parties have caused this Assignment to be
duly executed by their respective signatories duly authorized as of the
date first written above.
INSIGNIA PROPERTIES, L.P.
By: Insignia Properties Trust
Its: General Partner
By: /s/ Peter Kompaniez
-------------------------------
Name: Peter Kompaniez
Title: President
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, Inc.
Its:General Partner
By: /s/ Peter Kompaniez
-------------------------------
Name: Peter Kompaniez
Title: President
SCHEDULE A
ASSETS
The "Assets" shall include all each and every asset owned directly by
the Assignor, other than the following:
1) The capital stock of Cooper River Properties, LLC, a Delaware
limited liability company.
2) All cash.
3) Any rights of Assignor pursuant to that certain Credit
Agreement, among Assignor, Lehman Commercial Paper Inc., as
lending agent, First Union National Bank, as administrative
agent, and the lenders from time to time party thereto.
* * * * *
CONSENT TO SALE OF ASSETS
Reference is made to the Fourth Amended and Restated Limited
Partnership Agreement (the "Agreement") of Insignia Properties, L.P. (the
"Partnership"), dated as of February 17, 1998, as amended. Capitalized
terms used herein and not defined herein have the meanings ascribed to such
terms in the Agreement.
Article VI of the Agreement may be construed as requiring the
consent of the General Partner and/or the Limited Partner to the transfer
of assets pursuant to that certain Amended and Restated Assignment and
Assumption Agreement of even date herewith by and between AIMCO Properties,
L.P., as transferee, and Insignia Properties, L.P., as transferor (the
"Assignment"). Therefore, Insignia Properties Trust, as General Partner of
the Partnership, and Apartment Investment and Management Company, Insignia
Capital Corporation and AIMCO Properties, L.P., on behalf of the Limited
Partners of the Partnership, hereby consent to the sale of all of those
assets owned by the Partnership, pursuant to and upon the terms and
conditions provided in the Assignment.
* * * * *
IN WITNESS WHEREOF, this Consent has been duly executed by the
parties hereto as of the 7th day of December, 1998.
GENERAL PARTNER:
INSIGNIA PROPERTIES TRUST,
General Partner of the Partnership,
representing at least a 70.2% interest
in the Partnership
By: /s/ Patrick J. Foye
-----------------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
LIMITED PARTNERS:
AIMCO PROPERTIES, L.P.,
as transferee of the at least 26.7% limited
partner interests in the Partnership held by
Apartment Investment and Management Company
and the at least 3.0% limited partner
interests in the Partnership held by Insignia
Capital Corporation
By: AIMCO-GP, Inc.
Its: General Partner
By: /s/ Patrick J. Foye
------------------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
as Limited Partner holding at least a 26.7%
limited partner interest in the Partnership
By: /s/ Patrick J. Foye
------------------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
INSIGNIA CAPITAL CORPORATION,
as Limited Partner holding at least a 3.0%
limited partner interest in the Partnership
By: /s/ Patrick J. Foye
------------------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
EXHIBIT 99.3
IRREVOCABLE LIMITED PROXY
This Irrevocable Limited Proxy, dated as of January 22, 1999, is
made by and between Apartment Investment and Management Company, a Maryland
corporation ("AIMCO"), and Andrew L. Farkas, James A. Aston and Frank M.
Garrison.
The undersigned have previously entered into an irrevocable limited
proxy, dated as of December 7, 1998 (the "Second Proxy"), and now wish to
substitute this Proxy for the Second Proxy in its entirety.
The undersigned holder (the "Shareholder") of common shares of
beneficial interest, par value $.01 per share (the "Shares"), of Insignia
Properties Trust, a Maryland real estate investment trust ("IPT"), hereby
irrevocably appoints and constitutes each of Andrew L. Farkas, James A.
Aston and Frank M. Garrison who are duly authorized representatives of IPT
and each of them (the "Proxyholders"), the agents and proxies of the
undersigned, with full power of substitution and resubstitution, as set
forth below with respect to the Shares, and any and all other shares or
securities issued or issuable in respect thereof on or after the date
hereof and prior to the date this proxy terminates.
The agents and proxies named above are empowered at any time prior
to termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of the shareholders of IPT (the "IPT Meeting")
and in every written consent in lieu of such a meeting, or otherwise, in
favor of approval of the Merger (as defined in the Second Amended and
Restated Agreement and Plan of Merger, dated as of January 22, 1999 (the
"Merger Agreement"), by and between IPT and AIMCO, the Merger Agreement and
any matter that could reasonably be expected to facilitate the Merger. The
Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares and other shares on all such other matters.
The proxy granted by the Shareholder to the Proxyholders hereby is
granted as of the date of this Proxy pursuant to Section 6.5 of the Merger
Agreement and is irrevocable and coupled with an interest in IPT held by
the Proxyholder.
Upon the execution hereof, all prior proxies given by the
undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date
hereof are hereby revoked and no subsequent proxies will be given until
such time as this Proxy shall be terminated in accordance with its terms.
Notwithstanding any provision of this Proxy to the contrary, the
Shares and any other shares, securities, cash or other property issued or
issuable or distributed or distributable with respect thereto are and shall
be the property of the Shareholder, and the Proxyholders shall have no
ownership interest therein.
Any obligation of the undersigned hereunder shall be binding upon
the successors and assigns of the undersigned. The Shareholder authorizes
the Proxyholders to file this proxy and any substitution or revocation of
substitution with the Secretary of IPT and with any Inspector of Elections
at any meeting of the shareholders of IPT.
This Proxy is irrevocable and shall survive the insolvency,
dissolution or liquidation of the undersigned. This Proxy shall terminate
on the earlier of (a) January 1, 2002 and (b) consummation of the Merger.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as of
the day and year first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Patrick J. Foye
-------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
Each of the undersigned hereby agrees to vote the Shares subject to
this Irrevocable Proxy in favor of the Merger, the Merger Agreement and any
matter that could reasonably be expected to facilitate the Merger at every
IPT Meeting and in every written consent in lieu of such a meeting, or
otherwise.
----------------------------------
Andrew L. Farkas
/s/ James A. Aston
----------------------------------
James A. Aston
/s/ Frank M. Garrison
----------------------------------
Frank M. Garrison
EXHIBIT 99.4
SHAREHOLDERS' AGREEMENT
This SHAREHOLDERS' AGREEMENT, dated as of January 22, 1999 (this
"Shareholders' Agreement"), is made by and among Andrew L. Farkas, James A.
Aston and Frank M. Garrison (collectively, the "Shareholders") and
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation
("AIMCO"). Each of the Shareholders is a shareholder of Insignia Properties
Trust, a Maryland real estate investment trust ("IPT").
WHEREAS, on October 1, 1998, AIMCO acquired a majority of the
issued and outstanding shares of beneficial interest of, par value $0.01
per share, of IPT ("IPT Common Shares"), as a result of the consummation of
the merger of Insignia Financial Group, a Delaware corporation ("IFG"),
with and into AIMCO, pursuant to the Amended and Restated Agreement and
Plan of Merger, dated as of May 26, 1998, by and among IFG, AIMCO and the
other parties named therein; and
WHEREAS, AIMCO and IPT entered into an Agreement and Plan of
Merger, dated as of October 1, 1998 (the "Original Merger Agreement"),
pursuant to which IPT was to be merged with and into AIMCO; and
WHEREAS, AIMCO, IPT and TPI Acquisition Trust, a Maryland real
estate investment trust and a subsidiary of AIMCO ("Merger Sub"), entered
into an Amended and Restated Agreement and Plan of Merger, dated as of
December 7, 1998 (the "Amended Merger Agreement"), pursuant to which Merger
Sub was to be merged with and into IPT; and
WHEREAS, in connection with the Amended Merger Agreement, the
undersigned entered into a Shareholders' Agreement, dated as of December 7,
1998 (the "Amended Shareholders' Agreement"); and
WHEREAS, on the date hereof, IPT and AIMCO will enter into the
Second Amended and Restated Agreement and Plan of Merger, dated as of
January 22, 1999 (the "Merger Agreement"), which supercedes the Amended
Merger Agreement and provides for the merger of IPT with and into AIMCO
(the "Merger") on the terms and subject to the conditions set forth
therein; and
WHEREAS, AIMCO is entering into this Shareholders' Agreement in
order to induce IPT to enter into the Merger Agreement; and
WHEREAS, the undersigned now wish to amend and restate the Amended
Shareholders' Agreement in its entirety, with the effect of superseding and
extinguishing any obligations under the Amended Shareholders' Agreement.
13.4 AIMCO hereby agrees that, following a termination of the Merger
Agreement pursuant to Section 8.1(b), 8.1(c)(i) or 8.1(c)(iii), with
respect to every matter that is submitted to a vote of IPT shareholders at
an annual or special meeting of IPT shareholders, AIMCO will attend such
meeting and vote, and will cause its affiliates (as that term is defined in
Rule 12b-2 under the Securities Exchange Act of 1934, as amended) to attend
such meeting and vote, all IPT Common Shares held by it or any of them as
follows: For the first two annual meetings of IPT shareholders following
such a termination, in favor of designees of the Continuing Trustees (as
defined in the IPT Bylaws) so that such designees constitute a majority of
the trustees on the Board of Trustees of IPT (the "Board"), and thereafter
in favor of designees of the Continuing Trustees so that such designees
constitute one less than a majority of the trustees on the Board; provided,
however, that any nominee of the Continuing Trustees (other than a nominee
of the Continuing Trustees immediately after the execution of the Merger
Agreement) must be reasonably satisfactory to AIMCO.
13.5 This Shareholders' Agreement shall remain in effect for as long
as AIMCO and any of its affiliates own more than 10% of the IPT Common
Shares entitled to vote and the Merger has not been consummated.
13.6 If for whatever reason any provision of this Shareholders'
Agreement is determined to be invalid or unenforceable, a suitable and
equitable provision shall be substituted therefor in order to carry out, so
far as may be valid and enforceable, the intent and purpose hereof. If
paragraph 4 hereof is determined to be invalid or unenforceable, AIMCO
agrees to provide to the trustees of IPT who are either trustees
immediately prior to the execution and delivery of the Original Merger
Agreement or whose election to the Board is designated by such trustees or
their successors (i.e., trustees that are not AIMCO-nominated Trustees (as
defined in the Merger Agreement)) its proxy to vote its IPT Common Shares.
The proxy shall be in form and substance satisfactory to such trustees,
shall have a term of not less than 10 years and shall, being coupled with
an interest, state that it is irrevocable.
13.7 AIMCO is entering into this Shareholders' Agreement for the
benefit of the Shareholders, IPT and for the benefit of all shareholders of
IPT other than AIMCO and its affiliates.
(a) This Shareholders' Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland, without
giving effect to its conflicts of laws provisions.
(b) This Shareholders' Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(c) This Shareholders' Agreement may not be amended or modified
except in writing between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Shareholders'
Agreement as of the day and year first above written.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Patrick J. Foye
--------------------------------
Name: Patrick J. Foye
Title: Executive Vice President
/s/ Andrew L. Farkas
-----------------------------------
Andrew L. Farkas
/s/ James A. Ashton
-----------------------------------
James A. Aston
/s/ Frank M. Garrison
-----------------------------------
Frank M. Garrison
EXHIBIT 99.5
APARTMENT INVESTMENT AND MANAGEMENT COMPANY AND
INSIGNIA PROPERTIES TRUST ANNOUNCE FEBRUARY 26, 1999 AS
DATE
FOR SPECIAL MEETING OF INSIGNIA PROPERTIES TRUST
SHAREHOLDERS FOR PREVIOUSLY ANNOUNCED MERGER
DENVER and GREENVILLE, SOUTH CAROLINA, January 29, 1999 -- Apartment
Investment and Management Company ("AIMCO") (NYSE: AIV) and Insignia
Properties Trust ("IPT") (AMEX: FFO) announced that the special meeting of
shareholders of IPT to approve the agreement and plan of merger between
AIMCO and IPT is scheduled to be held on February 26, 1999 and that the
Information Statement of IPT and Prospectus of AIMCO relating to the merger
was mailed yesterday.
Assuming the merger is completed on February 26, 1999, IPT
shareholders will receive, at AIMCO's election, $13.28 per IPT share in
AIMCO Common Stock, $13.25 (plus interest) per IPT share in cash, or a
combination of both. AIMCO has determined that if it elects to pay both
cash and AIMCO common stock as consideration in the merger, it will pay at
least 83% of the consideration for the merger in stock. However, AIMCO
retains the right to pay either all cash or more than 83% of the
consideration for the merger in AIMCO common stock, subject to the
provisions of the merger agreement. If AIMCO common stock is used as all or
part of the merger consideration, the AIMCO exchange value will be the
lesser of (i) $36.8781, which is the average sales price of AIMCO common
stock during the last 10-NYSE trading days of 1998, or (ii) the average
sales price of AIMCO common stock for the 10-NYSE trading days ending the
day before the special meeting, anticipated to be February 11, 1999 through
February 25, 1999. IPT will issue a press release on or before February 9,
1999 announcing the percentage of the merger consideration that AIMCO will
pay in cash.
AIMCO will pay approximately $151.5 million (assuming AIMCO elects to
pay the merger consideration in all stock) to acquire the 49% of the
outstanding IPT shares not owned by AIMCO.
Assuming a record date of February 25, 1999, IPT shareholders of
record on such date will receive a final cash distribution anticipated to
be $0.28 per IPT share which covers the period from October 1, 1998 through
February 25, 1999 and is equivalent to an annualized distribution of $0.64
per common share. This distribution will be paid 15 days after the record
date.
The merger requires approval of the holders of a majority of the
outstanding common shares of IPT. AIMCO and its subsidiaries own 51% of the
shares of IPT and have agreed to vote in favor of the merger. Accordingly,
IPT shareholder approval is assured.
AIMCO is a real estate investment trust with headquarters in Denver,
Colorado and 37 regional operating centers, which holds a geographically
diversified portfolio of apartment communities. AIMCO, through its
subsidiaries, operates approximately 2,150 properties, including
approximately 380,000 apartment units, and serves approximately one million
residents. AIMCO's properties are located in 49 states, the District of
Columbia and Puerto Rico.
IPT is a real estate investment trust which primarily acquires and
owns interests in multifamily residential properties. As of October 1,
1998, IPT controlled 121 real estate limited partnerships and owned ten
real properties. These 121 real estate limited partnerships owned a total
of approximately 339 properties containing approximately 70,000 apartment
units and approximately 5.9 million square feet of commercial space.
Contact: Peter Kompaniez, President, (714) 593-1723 or Leeann Morein,
Senior Vice President - Investor Services, (303) 757-8101 both of Apartment
Investment and Management Company, [email protected]
Web Site: HTTP://WWW.AIMCO.COM
