Exhibit 2.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT
AND PLAN OF MERGER, dated as of April 19, 2007 (this “
Amendment ”), is made and entered into by and among
New Plan Excel Realty Trust, Inc., a Maryland corporation (the
“ Company ”), Excel Realty Partners, L.P.,
a Delaware limited partnership (the “ DownREIT
Partnership ” and together with the Company, the “
Company Parties ”), Super IntermediateCo LLC, a
Maryland limited liability company (“ Parent ”),
Super MergerSub, Inc., a Maryland corporation and a wholly owned
subsidiary of Parent (“ MergerSub ”), and Super
DownREIT MergerSub LLC, a Delaware limited liability company and a
wholly owned subsidiary of Parent (the “Super REIT
MergerSub ” and together with MergerSub and Parent, the
“ Buyer Parties ”).
WHEREAS, on February 27, 2007, the
Company Parties and the Buyer Parties entered in to an Agreement
and Plan of Merger (the “ Merger Agreement ”;
capitalized terms used but not defined herein have the respective
meanings given to them in the Merger Agreement);
WHEREAS, pursuant to Section 2.04 of
the Merger Agreement, the Company granted to MergerSub an
irrevocable option to purchase from the Company at a price per
share equal to the Offer Price the number of authorized and
unissued Company Common Shares equal to the number of Company
Common Shares that, when added to the number of Company Common
Shares owned by the Buyer Parties and their Affiliates at the time
of exercise of the Top-Up Option or the taking of any action under
Section 3-106 of the MGCL as contemplated by Section 7.02 of the
Merger Agreement (whichever is greater), is sufficient to permit
MergerSub to consummate a short-form merger pursuant to Section
3-106 of the MGCL (the “ Top-Up Shares
”);
WHEREAS, pursuant to Section 10.04
of the Merger Agreement, the parties hereto desire to amend the
Merger Agreement, as set forth in this Amendment, to permit
MergerSub to pay for the Top-Up Shares either in cash or a
combination of cash and a promissory note, at MergerSub’s
election; and
WHEREAS, this Amendment has been
approved by the respective board of directors (or similar governing
body or entity) of each of the parties hereto and in accordance
with Section 2.03(c) of the Merger Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1
Amendment of Section
2.04(b) . Section
2.04(b) of the Merger Agreement is hereby amended by deleting in
its entirety the last sentence thereof which reads “The
aggregate purchase price payable for the Company Common Shares
being purchased by MergerSub pursuant to the Top-Up Option shall be
determined by multiplying the number of such shares by the Offer
Price and shall be paid in cash.”
SECTION 1.2
Addition of New Section
2.04(d) . Section
2.04 of the Merger Agreement is hereby amended by adding the
following new subsection (d) thereto:
(d)
In the event MergerSub exercises the
Top-Up Option, the applicable exercise price shall be payable at
the time of the closing of the purchase of the Top-Up Shares in the
form of, at MergerSub’s election:
(i)
cash in an amount equal to the Offer
Price for each Top-Up Share that MergerSub intends to purchase
pursuant to the Top-Up Option,
(ii)
(x) $.01 in cash for each Top-Up
Share that MergerSub intends to purchase pursuant to the Top-Up
Option and (y) a promissory note of MergerSub, Parent or another
Affiliate of MergerSub (a “ Note ”) in the
principal amount of the Offer Price less $.01 for each Top-Up Share
that MergerSub (or Parent or such Affiliate, as the case may be)
intends to purchase pursuant to the Top-Up Option, which Note shall
(A) be due and payable five years from the date of its issue, (B)
bear interest, at the prime rate in effect from time to time of
JPMorgan Chase Bank, N.A., payable annually on each anniversary of
the date of its issue, and (C) be prepayable at any time without
penalty at the maker’s option, or
(iii)
such other combination of cash and a
Note, as specified by MergerSub, so long as cash is paid in an
amount at least equal to $.01 per f
