Exhibit 2.2
FORM OF PUT
AGREEMENT
PL Retail LLC (“
Company ”) and Price Group LLC (“ Buyer
”) have entered into this Put Agreement (the “
Agreement ”) as of
,
2004.
Section 1.
Put Right
. Subject to the terms and
conditions of this Agreement, Company shall have the right (the
“ Put Right ”) to require Buyer to purchase (i)
a 100% ownership interest (the “ T1 Interest ”)
in a newly formed limited liability company (“ Target
One ”) wholly owned by Price Legacy Corporation (“
Price Legacy ”) from Price Legacy, and (ii) a 100%
ownership interest (the “ T2 Interest ”) in a
newly formed limited liability company (“ Target Two
”) wholly owned by Excel Legacy Holdings, Inc. (“
TRS ”), a wholly owned subsidiary of Price Legacy,
from TRS, in each case immediately following the closing of the
merger of a subsidiary of Company with and into Price Legacy (the
“ Merger ”). Company may only exercise the
Put Right with respect to both the T1 Interest and the T2 Interest,
and not with respect to the T1 Interest or the T2 Interest
alone. Company may exercise the Put Right by delivering a
written notice of exercise to Buyer no earlier than
September 12, 2004 and no later than September 30,
2004. The closing of the put transaction (the “
Closing ”) shall occur, if at all, immediately
following the closing of the Merger (it being understood that the
closing of the Merger and the Closing, if it occurs, shall occur at
one concurrent closing). “Buyer” for purposes of
this Agreement shall mean Price Group LLC or any other person(s)
designated by Price Group LLC, so long as (i) Price Group LLC
guarantees the obligations of such designee(s) under this agreement
pursuant to a guaranty agreement reasonably satisfactory to the
parties, and (ii) such designee becoming a party to or consummating
this Agreement does not (a) violate any laws applicable to Company
or Price Legacy, or (b) cause any adverse tax consequences to
Company or Price Legacy. At the Closing, Company shall cause
(i) Price Legacy to deliver to Buyer a duly executed and
enforceable assignment and assumption of the T1 Interest (the
“ T1 Assignment ”) and (ii) TRS to deliver to
Buyer a duly executed and enforceable assignment and assumption of
the T2 Interest (the “ T2 Assignment ”), and
Buyer shall, in exchange, deliver (x) to Price Legacy an amount of
cash (the “T1 Cash Component”) and/or shares of Price
Legacy common stock (valued on a per share basis equal to the
Merger Consideration (as such term is defined in the Merger
Agreement)) (such shares, the “ T1 Share Component
”) equal to
$ ,
and (y) to TRS an amount of cash (the “ T2 Cash
Component ”) and/or shares of Price Legacy common stock
(valued on a per share basis equal to the Merger Consideration)
(such shares, the “ T2 Share Component ”) equal
to
$
[the total of such amounts being equal to the number of outstanding
shares of Price Legacy common stock immediately prior to the
effective time of the Merger, including the T1 Share Component and
the T2 Share Component, if any, x $4.00 per share; such amounts
shall be filled in upon signing, to be adjusted for any change in
the number of outstanding shares at Closing], as adjusted to
reflect the proration adjustment provided for in Section 4
(the purchase price for the T1 Interest, as so adjusted, being
referred to as the “ T1 Purchase Price ” and the
purchase price for the T2 Interest, as so adjusted, being referred
to as the “ T2 Purchase Price ”). In lieu
of the delivery at the Closing by Buyer to Price Legacy of the T1
Purchase Price and the delivery at the Closing by Buyer to TRS of
the T2 Purchase Price, Company may instead instruct Buyer in
writing (at least four days in advance of the Closing) to, and upon
such instruction Buyer shall, deliver to the Exchange Agent (as
such term is defined in the Merger Agreement) the T1 Cash Component
and T2 Cash Component, if any, and deliver to Price Legacy and TRS
the T1 Share Component and T2 Share Component, respectively, if
any, with each such delivery taking place immediately before the
closing of the Merger, to be held in escrow by each of the Exchange
Agent and Price
1
Legacy and TRS, as applicable, pending the
Closing and the delivery of the T1 Assignment and T2 Assignment to
Buyer. At least five days in advance of the Closing, Buyer
shall notify Company as to the number of shares of Price Legacy
common stock, if any, it intends to deliver as part of the T1
Purchase Price and T2 Purchase Price at the Closing, and Company
shall provide to Buyer in writing its wire transfer instructions
for the cash portion, if any, of the T1 Purchase Price and T2
Purchase Price. This Agreement shall be deemed automatically
amended as of the Closing to increase the T1 Purchase Price and the
T2 Purchase Price, pro rata, by the aggregate amount of the product
of $4.00 times the number of additional shares of Price Legacy
Common Stock issued between the date hereof and the Closing, if
any.
Section 2.
Target
. It is contemplated that (i)
Price Legacy and Excel Legacy Corporation (“ QRS
”) shall transfer the Target One Assets (as defined below) to
Target One prior to the Merger, in exchange for the T1 Interest
being issued to Price Legacy, and TRS shall transfer the Target Two
Assets (as defined below) to Target Two prior to the Merger, in
exchange for the T2 Interest. Target One shall assume all
liabilities and obligations of Price Legacy (and any of its
subsidiaries and affiliates), including any loan, bond, guaranties
or contractual obligations, specifically relating to the Target One
Assets, and Target Two shall assume all liabilities and obligations
of Price Legacy (and any of its subsidiaries and affiliates),
including any loan, bond, guaranties or contractual obligations,
specifically relating to the Target Two Assets. Buyer hereby
represents and warrants to Company that QRS and TRS are, and as of
the Closing will be, directly or indirectly, wholly-owned
subsidiaries of Price Legacy. It is the intention of the
parties that, as of the Closing, (i) Target One will have legal and
marketable title to the real property and other assets described on
Exhibit A hereto (the “ Target One Assets ”),
that the cash balances in any operating accounts included in the
Target One Assets will not exceed the amounts reflected on Exhibit
A hereto, and that Target One will own no other assets other than
those agreed to in writing by Buyer and Company (which, if
applicable, shall be included within the definition of Target One
Assets), (ii) the Target One Assets will not be subject to any
liens or encumbrances, and Target One will not have any liabilities
or obligations, other than those existing on the date hereof and
such additions thereto and modifications thereof as shall have
resulted solely from the ordinary course of the business of Price
Legacy o
