EXHIBIT 2.1
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PLAN AND AGREEMENT OF MERGER
MERGING
KLLLC MERGERCO, LLC
WITH AND INTO
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This Plan and Agreement of Merger, dated this 6th day of April,
2007,
pursuant to Title 6, Section 18-209 of the Delaware Limited
Liability
Company Act ("Delaware Law"), between Kaanapali Land, LLC, a
Delaware
limited liability company ("Kaanapali"), and KLLLC Mergerco, LLC,
a
Delaware limited liability company ("KLLLC"), has been approved by
(1)
Written Consent by Pacific Trail Holdings, LLC, a Delaware
limited
liability company ("Pacific Trail"), in its capacity as the Manager
of
Kaanapali, (2) Unanimous Written Consent of the Directors of
Pacific Trail
Holdings, Inc., a Delaware corporation, the Managing Member of
Pacific
Trail, and (3) Written Consent of Pacific Trail as the sole Member
of
KLLLC, each on April 6, 2007.
FIRST: MERGER.
Pursuant to the
provisions of the Delaware Law and the
respective organizational documents of Kaanapali and KLLLC,
KLLLC shall be merged with and into Kaanapali with Kaanapali
being the surviving entity (the "Merger"). The Merger shall
become effective upon the filing of the Certificate of Merger
with the Delaware Secretary of State in accordance with
Delaware Law or at such other time as specified in the
Certificate of Merger in accordance with Delaware Law (the
"Effective Time"). At
the Effective Time, Kaanapali shall
continue its corporate existence as a limited liability
company formed under Delaware Law (sometimes hereinafter
referred to as the "Surviving Entity"). The separate
existence of KLLLC shall cease at the Effective Time.
SECOND: CERTIFICATE OF
FORMATION. The
Certificate of Formation of the
Surviving Entity from and after the Effective Time shall be the
Certificate of Formation of Kaanapali in effect immediately
prior to the Effective Time and said Certificate of Formation
shall continue in full force and effect as provided under
Delaware Law.
THIRD: OPERATING
AGREEMENT. The
operating agreement of the Surviving
Entity from and after the Effective Time will be the operating
agreement of Kaanapali in effect immediately prior to the
Effective Time and will continue in full force and effect until
thereafter amended as provided therein and under Delaware Law.
FOURTH: OFFICERS.
Until their successors
are duly elected and shall
have qualified, the officers and manager of Kaanapali
immediately prior to the Effective Time shall be the initial
officers and manager of the Surviving Entity from and after
the Effective Time.
FIFTH: EFFECT ON
CLASS A SHARES AND CLASS B SHARES. At the Effective
Time, by virtue of the Merger and without any further action on
the part of KLLLC or Kaanapali, or their respective managers or
members:
(a) The
membership interest in KLLLC owned by Pacific Trail
shall automatically be cancelled and shall cease to exist
and no payment shall be made with respect thereto;
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(b) Each Class B
Share of Kaanapali immediately prior to the
Effective Time shall remain issued and outstanding and
continue to represent a membership interest in the
Surviving Entity, but shall no longer be denominated as
Class B Shares and instead shall be redesignated as a
percentage interest in the Surviving Entity equal to the
fraction, expressed as a percentage, of one Class B Share
divided by the total number of Class B Shares issued and
outstanding immediately prior to the Effective Time;
(c) Each Class A
Share of Kaanapali issued and outstanding
immediately prior to the Effective Time, including all
accrued and unpaid distributions thereon, if any, shall
automatically be converted into and become the right to
receive $43.25 (the "Class A Merger Consideration"). The
Class A Merger Consideration shall be paid in cash. At
the Effective Time, all such Class A Shares (and the
membership interests represented thereby) shall
automatically be canceled and shall cease to exist,
and each holder of Class A Shares in Kaanapali
(a "Class A Shareholder") immediately prior to the
Effective Time (i) who was a member of Kaanapali shall
cease to be a member of Kaanapali and shall not be a
member of the Surviving Entity, and (ii) shall cease
to have any rights with respect to such Class A
Shares, except the right to receive the Class A Merger
Consideration; and,
(d)
Notwithstanding anything to the contrary in this
Agreement, if the Merger is of another type or structure
contemplated by Section NINTH below, (i) each Class A
Share shall be converted into the right to receive the
Class A Merger Consideration, and (ii) the other
provisions of this Section FIFTH shall be modified by the
parties hereto to give the effect to such type of
structure.
SIXTH:
AUTHORIZATION AND EXECUTION OF DOCUMENTS. Upon satisfaction of
all of the conditions to the Merger set forth herein, or at
such earlier time as may be determined by the respective
officers of Kaanapali and KLLLC, each officer of Kaanapali and
KLLLC is hereby authorized to execute and file the Certificate
of Merger on behalf of said entities in conformity with
Delaware Law and the proper officers of Kaanapali and KLLLC are
hereby authorized, empowered and directed to do any and all
acts and things, and to make, execute, deliver, file and/or
record any and all instruments, papers and documents which
shall be or become
necessary, proper or convenient to carry out
or put into effect any of the provisions contained in this Plan
and Agreement of Merger or to otherwise effectuate the Merger
including, without limitation, the qualification of this
Company to transact business as a foreign corporation in such
jurisdictions he, she or they may deem advisable.
SEVENTH:
SUCCESSOR TO ASSETS AND LIABILITIES. At and after the
Effective Time, the Surviving Entity shall possess all the
rights, privileges, powers and franchises, of both a public and
private nature, and be subject to all the restrictions,
disabilities and duties of KLLLC and all property real,
personal and mixed, and all debts due on whatever account, and
all other things in action or belonging to KLLLC shall be
vested in the Surviving Entity; and all debts, liabilities,
duties and obligations of KLLLC shall thenceforth attach to
the Surviving Entity and may be enforced against the Surviving
Entity to the same extent as if said debts, liabilities, duties
and obligations have been incurred or contracted by the
Surviving Entity in the same manner and to the same extent as
enforceable against KLLLC.
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EIGHTH: VESTING OF
PROPERTY RIGHTS BY OPERATION OF LAW. The Merger
shall not be deemed to constitute an assignment or transfer to
the Surviving Entity of any interest in any property, lease or
other contract; it being understood that any and all such
interests shall be vested in the Surviving Entity without
revision or impairment by virtue of the Merger and without any
further action by any person whatsoever.
NINTH: CHANGE OF
MERGER STRUCTURE.
Notwithstanding anything to the
contrary in this Agreement, the parties shall have the right,
in their sole discretion, to (i) change the type or structure
of, and/or the parties to, the Merger, including changing the
structure of the Merger so that (x) Kaanapali merges with and
into KLLLC with KLLLC being the surviving entity, (y) an
affiliate of Pacific Trail other than KLLLC merges with and
into Kaanapali with Kaanapali being the surviving entity and
(z) an affiliate of Pacific Trail other than KLLLC merges with
and into Kaanapali with such other affiliate being the
surviving entity and/or (ii) assign any or all of their rights,
interests, duties or obligations under this Agreement to any
affiliate of Pacific Trail, provided that any action taken by
any party pursuant to this Section NINTH shall not,
individually or when taken together with any or all other
actions under this Section NINTH, have an adverse effect on any
member of Kaanapali or KLLLC. If an entity other than KLLLC is
a party to the Merger,
