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Exhibit 2.2
FORM OF AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, dated as of ___________, 2000 (this "Agreement"),
between Grove Operating, L.P., a Delaware limited partnership (the
"Partnership"), and New LLC2, a Delaware limited liability company (the
"Company"). Any capitalized terms used but not defined herein shall have the
meanings ascribed to them in that certain Agreement and Plan of Merger by and
among ERP Operating Limited Partnership, an Illinois limited partnership
("ERP"), Grove Property Trust, a Maryland real estate investment trust
("Grove"), and the Partnership, dated as of July 17, 2000 (the "Merger
Agreement").
W I T N E S S E T H:
WHEREAS, Section 17-211 of the DRULPA and Section 18-209 of the LLC Act
authorizes the merger of a Delaware limited liability company with and into a
Delaware limited partnership;
WHEREAS, the Partnership and the Company now desire to merge (the
"Merger"), following which the Partnership shall be the surviving entity;
WHEREAS, Grove, in its capacity as the general partner of the Partnership
(the "GP"), has approved this Agreement and the consummation of the Merger;
WHEREAS, the requisite number of the members of the Company have approved
this Agreement and the consummation of the Merger;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER. (a) On the Closing Date and in accordance with the
terms of the Merger Agreement, the Partnership, which shall be the surviving
entity, shall merge with the Company and shall file a certificate of merger
substantially in the form of Exhibit 1 hereto (the "Certificate of Merger") with
the Secretary of State of Delaware and make all other filings or recordings
required by Delaware law in connection with the Merger. The Merger shall become
effective at such time as is specified in the Certificate of Merger (the
"Effective Time").
(b) At the Effective Time, the Company shall be merged with and into the
Partnership whereupon the separate existence of the Company shall cease, and the
Partnership shall be the surviving entity of the Merger (the "Surviving
Partnership") in accordance with Section 17-211 of the DRULPA and Section 18-209
of the LLC Act.
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SECTION 1.02 EXCHANGE OF INTERESTS. At the Effective Time and in accordance
with the provisions of the Merger Agreement:
(a) Each Grove LP Unit issued and outstanding immediately prior to the
Effective Time (excluding any Grove LP Units to be canceled pursuant to Section
1.02(b)) shall be canceled and converted into the right to receive, subject to
the terms and conditions of the Merger Agreement, at the election of the Limited
Partner holding such Grove LP Unit made pursuant to Section 1.9(c) of the Merger
Agreement, either (i) the Partnership Cash Merger Consideration payable to the
holder thereof in cash, without interest thereon, less any required withholding
of taxes, or (ii) the Partnership Unit Merger Consideration.
(b) Each Grove LP Unit held by Grove OP and each Grove LP Unit owned by ERP
or any direct or indirect wholly-owned subsidiary of Grove or ERP immediately
prior to the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, cease to be outstanding, be canceled
and retired without payment of any consideration therefor and cease to exist.
(c) At the Effective Time, each limited liability company interest in the
Company shall be automatically converted into one Grove LP Unit.
(d) Each unit of general partnership interest in Grove OP shall be
unaffected by the Merger.
ARTICLE II
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 2.01 TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time,
the Partnership shall continue in existence as the Surviving Partnership, and
without further transfer, succeed to and possess all of the rights, privileges
and powers of the Company, and all of the assets and Property of whatever kind
and character of the Company shall vest in the Partnership without further act
or deed; thereafter, the Partnership, as the Surviving Partnership, shall be
liable for all of the liabilities and obligations of the Company, and any claim
or judgment against the Company may be enforced against the Partnership, as the
Surviving Partnership, in accordance with Section 17-211 of the DRULPA and
Section 18-209 of the LLC Act.
SECTION 2.02 FURTHER ASSURANCES. If at any time the Partnership shall
consider or be advised that any further assignment, conveyance or assurance is
necessary or advisable to vest, perfect or confirm of record in the Surviving
Partnership the title to any property or right of the Company, or otherwise to
carry out the provisions hereof, the proper representatives of the Company as of
the Effective Time shall execute and deliver any and all proper deeds,
assignments, and assurances and do all things necessary or proper to vest,
perfect or convey title to such property or right in the Surviving Partnership,
and otherwise to carry out the provisions hereof.
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ARTICLE III
TERMINATION
SECTION 3.01 TERMINATION. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time by mutual written
consent of the Company and the GP, on behalf of the Partnership.
SECTION 3.02 EFFECTIVE OF TERMINATION. If this Agreement is terminated
pursuant to Section 3.01, this Agreement shall become void and of no effect with
no liability on the part of either party hereto.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 GENERAL PARTNER AUTHORIZATION. The general partner of the
Surviving Partnership, shall be authorized, at such time in its sole discretion
as it deems appropriate to execute, acknowledge, verify, deliver, file and
record, for and in the name of the Partnership and, to the extent necessary, the
members of the Company, the GP and the limited partners of the Partnership, any
and all documents and instruments including, without limitation, the partnership
agreement of the Surviving Partnership and the Certificate of Merger, and shall
do and perform any and all acts required by applicable law which the general
partner of the Surviving Partnership deems necessary or advisable, in order to
effectuate the Merger.
SECTION 4.02 AMENDMENTS; NO WAIVERS. (a) Any provision of this Agreement
may, subject to applicable law, be amended or waived prior to the Effective Time
if, and only if, such amendment or waiver is in writing and signed by the
Company and by the GP, on behalf of the Partnership.
(b) No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 4.03 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
SECTION 4.04 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
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SECTION 4.05 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
the counterpart hereof signed by the other party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives.
NEW LLC2
By: New LLC, a Delaware limited liability company
Its: Sole Member
By: ERP Operating Limited Partnership, an
Illinois limited partnership
Its: Sole Member
By: Equity Residential
Properties Trust, a Maryland
real estate investment trust
Its: General Partner
By: ___________________________
Name:_____________________
Title:____________________
GROVE OPERATING, L.P.
By: Grove Property Trust, a Maryland real
estate investment trust
Its: General Partner
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
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EXHIBIT 1
CERTIFICATE OF MERGER
OF
NEW LLC2 INTO GROVE OPERATING, L.P.
DATED: ____________, 2000
The undersigned limited partnership formed and existing under and by virtue
of the Delaware Revised Uniform Limited Partnership Act, 6 DEL. C. Section
17-101, ET SEQ. (the "Act"),
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization of each of
the constituent entities which is to merger are as follows:
<TABLE>
<CAPTION>
JURISDICTION OF
NAME FORMATION OR ORGANIZATION
---- -------------------------
<S> <C>
New LLC2 Delaware
Grove Operating, L.P. Delaware
</TABLE>
SECOND: An Agreement of Merger has been approved and executed in accordance
with Section 17-211 of the Act and Section 18-209 of the Delaware Limited
Liability Company Act by (i) Grove Operating, L.P. and (ii) New LLC2.
THIRD: The name of the surviving Delaware limited partnership is Grove
Operating, L.P.
FOURTH: The merger of New LLC2 into Grove Operating, L.P. shall be
effective upon the filing of this Certificate of Merger with the Secretary of
State of the State of Delaware.
FIFTH: The executed Agreement of Merger is on file at the principal place
of business of the surviving limited partnership. The address of the principal
place of business of the surviving limited partnership is ____________________.
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SIXTH: A copy of the Agreement of Merger will be furnished by the surviving
limited partnership, on request and without cost, to any partner of Grove
Operating, L.P. and to any member of New LLC2.
GROVE OPERATING, L.P.
By: Grove Property Trust, a Maryland real
estate investment trust
Its: General Partner
By: ____________________________________________
Name:_______________________________________
Title:______________________________________
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