Exhibit 2.9
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
dated as of April 23, 1998, by and among HIGHWOODS PROPERTIES, INC., a Maryland
corporation ("Highwoods"), JACKSON ACQUISITION CORP., a Maryland corporation
("Sub"), and J.C. NICHOLS COMPANY, a Missouri corporation ("JCN"). Capitalized
terms used but not defined herein shall have the meanings set forth in the
Agreement and Plan of Merger dated as of December 22, 1997 and entered into
among Highwoods, Sub, and JCN (the "Agreement").
WHEREAS, the Parties wish to amend the Agreement, which contemplates the
merger of JCN with and into Sub (the "Merger"), in order to provide to JCN
shareholders greater certainty in determining the amount and form of
consideration to be received in the Merger; and
WHEREAS, Highwoods wishes to waive a condition to its obligation to
consummate the Merger.
NOW, THEREFORE, in consideration of the foregoing premises, covenants, and
agreements contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties to this Amendment,
intending to be legally bound, hereby agree as follows:
SECTION I
AMENDMENT TO ARTICLE 3
Section 1.1 Conversion of Shares. Section 3.1 (c) is hereby amended in its
entirety to read as follows:
(c) Subject to the right granted in Section 3.2, each share of JCN Common
Stock (including any associated JCN Rights, but excluding shares held by
any JCN Entity or any Highwoods Entity and excluding shares held by
shareholders who perfect their statutory dissenters' rights as provided
in Section 3.5) issued and outstanding immediately prior to the Effective
Time shall cease to be outstanding and shall be converted into a fixed
number of shares of Highwoods Common Stock. The number of shares of
Highwoods Common Stock to be issued for each share of JCN Common Stock
(the "Per Share Stock Consideration") shall be determined by reference to
a ratio (the "Exchange Ratio") that shall be equal to the greater of: (i)
1.84, or (ii) the quotient of $65 divided by the average of the daily
average high and low sale price for shares of Highwoods Common Stock on
the NYSE for each of the twenty (20) days immediately preceding the
Effective Time; provided, however, that at no time shall the Exchange
Ratio exceed 2.03. Pursuant to the Highwoods Rights Agreement, each share
of Highwoods Common Stock issued in connection with the Merger upon
conversion of JCN Common Stock shall be accompanied by a Highwoods Right.
Section 1.2 Cash Election. Section 3.2 is hereby amended in its entirety to
read as follows:
3.2 Cash Election. Holders of JCN Common Stock shall be provided with
an opportunity to elect to receive cash consideration in lieu of
receiving Highwoods Common Stock in the Merger, in accordance with the
election procedures set forth below in this Section 3.2. Holders who are
to receive cash in lieu of exchanging their shares of JCN Common Stock
for Highwoods Common Stock as specified below shall receive $65 per share
of JCN Common Stock in cash (the "Per Share Cash Consideration"). The
amount determined by multiplying $65 by the number of Dissenting Shares
shall be defined herein as the "Dissenting Share Amount." The aggregate
Per Share Cash Consideration to be paid in the Merger, plus the
Dissenting Share Amount, shall be limited to 40% of the aggregate
consideration paid in exchange for shares of JCN Common Stock and shall
be defined herein as the "Cash Amount."
A form for use by JCN shareholders to elect to receive cash and other
appropriate and customary transmittal material (which shall specify that
delivery shall be effected only upon
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proper delivery of the certificates theretofore representing JCN Common
Stock ("Old Certificates") to an exchange agent designated by Highwoods
(the "Exchange Agent")) in such form as Highwoods and JCN shall mutually
agree ("Election Form") shall be mailed concurrently with the mailing of
the Proxy Statement required by Section 8.1 hereof, or on such other date
as Highwoods and JCN shall mutually agree ("Mailing Date") to each holder
of record of JCN Common Stock on the record date ("Record Date") for the
JCN shareholders entitled to vote at the shareholders meeting to approve
the Merger as required by Section 8.1 (the "JCN Shareholders Meeting").
Each Election Form shall permit a holder (or the beneficial owner
through appropriate and customary documentation and instructions) of JCN
Common Stock to elect to receive cash with respect to all or a portion of
such holder's JCN Common Stock.
Any shares of JCN Common Stock with respect to which the holder (or
the beneficial owner, as the case may be) elects to receive cash and does
not dissent shall be referred to herein as the "Cash Election Shares."
Any shares of JCN Common Stock with respect to which the holder (or the
beneficial owner, as the case may be) either does not submit an Election
Form or does not elect to receive cash and does not dissent, shall be
collectively referred to herein as "Stock Election Shares."
Any of the elections set forth in the foregoing paragraph shall have
been properly made only if the Exchange Agent shall have actually
received an effective, properly completed Election Form on or before 5:00
p.m. on the fifth business day prior to the date of the JCN Shareholders
Meeting (or such other time and date as Highwoods and JCN may mutually
agree, including as a result of any adjournment or postponement of the
JCN Shareholders Meeting) (the "Election Deadline") which is not revoked
or changed prior to the Election Deadline. Any Election Form may be
revoked or changed by the person submitting a subsequent Election Form at
or prior to the Election Deadline. In the event an Election Form is
revoked prior to the Election Deadline, the shares of JCN Common Stock
represented by such Election Form shall become Stock Election Shares
unless the Exchange Agent shall have actually received an effective,
properly completed Election Form prior to the Election Deadline and such
Election Form is not revoked or changed prior to the Election Deadline.
Subject to the terms of this Agreement and of the Election Form, the
Exchange Agent shall have reasonable discretion to determine whether any
election, revocation or change has been properly or timely made and to
disregard immaterial defects in the Election Forms, and any good faith
decisions of the Exchange Agent regarding such matters shall be binding
and conclusive. The Exchange Agent shall promptly notify JCN of any
defect in an Election Form other than an immaterial defect disregarded in
good faith by the Exchange Agent. Subject to the foregoing sentence,
neither Highwoods nor the Exchange Agent shall be under any obligation to
notify any person of any defect in an Election Form.
Within three business days after the Election Deadline, Highwoods
shall cause the Exchange Agent to effect the allocation among the holders
of JCN Common Stock in accordance with the Election Forms; provided,
however, if the amount of cash that would be issued upon the conversion
of the Cash Election Shares is greater than the amount by which the Cash
Amount exceeds the Dissenting Share Amount (the "Maximum Cash Election
Amount"), then the Exchange Agent shall convert a sufficient number of
Cash Election Shares (other than Dissenting Shares) into the right to
receive the Per Share Stock Consideration, which Cash Election Shares
shall be selected pro rata from among all of the holders thereof, based
upon the aggregate number of Cash Election Shares held by each of such
holders, such that the amount of cash that will be issued in the Merger
to satisfy the non-converted Cash Election Shares equals as closely as
practicable the Maximum Cash Election Amount.
Highwoods shall, at least two business days prior to the date of the
JCN Shareholders Meeting, communicate to JCN the aggregate allocation of
stock and cash, the amount of stock and cash going to each of JCN's
shareholders, and the method in which such amounts were calculated.
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SECTION II
AMENDMENT TO ARTICLE 9
Section 2.1 Waiver by Highwoods of Certain Obligations. The introductory
paragraph to Section 9.1 of the Agreement is hereby amended in its entirety to
read as follows:
9.1 Conditions to Obligations of Each Party. The respective
obligations of each Party to perform this Agreement and consummate the
Merger and the other transactions contemplated hereby are subject to the
satisfaction of the conditions set forth below in this Section 9.1. JCN
may waive, pursuant to Section 11.6, one or more of the following
conditions. Highwoods hereby irrevocably waives and agrees to waive
immediately prior to Closing, pursuant to Section 11.6, all of the
conditions set forth in Section 9.1(b) (except
for the filing of the Articles of Merger as contemplated by Section
1.1) and the condition set forth in Section 9.1(c) that JCN obtain
from Principal Mutual Insurance Company the Consent to the Merger
referred to in Section 9.1 of the JCN Disclosure Memorandum.
SECTION III
AMENDMENT TO ARTICLE 10
Section 3.1 Waiver by Highwoods of Certain Termination Rights. Section
10.1(d)(i) is hereby amended in its entirety to read as follows:
(i) Highwoods shall, after using its best efforts, have been
unable to satisfy the condition to closing set forth in either
Section 9.1(e) or (f), to the extent required for consummation of the
Merger and the other transactions contemplated hereby, or
SECTION IV
AMENDMENT TO ARTICLE 11.1
Section 4.1 Definitions.
(a) Section 11.1(a) is hereby amended by adding the phrase, "as
such Section has been amended by Amendment No. 1 to this Agreement"
to the end of the definition of "Per Share Stock Consideration".
(b) Section 11.1(b) is hereby amended by adding the phrase "as
amended by Amendment No. 1 to this Agreement" after the end of each
of the definitions of "Cash Election Shares" and "Maximum Cash
Election Amount".
SECTION V
GENERAL PROVISIONS
Section 5.1 Entire Agreement. Except as otherwise expressly provided
herein, this Amendment (including the Agreement and the documents and
instruments referred to therein) constitutes the entire agreement between the
Parties with respect to the transactions contemplated hereunder and in the
Agreement and supersedes all other arrangements or understandings with respect
thereto, written or oral (except for the Confidentiality Agreement referred to
in Section 8.6(b) of the Agreement and any correspondence from any Party
waiving any rights or obligations or consenting to any actions taken by or on
behalf of another party).
Section 5.2 Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
Section 5.3 Captions, Articles and Sections. The captions contained in
this Amendment are for reference purposes only and are not part of this
Amendment. Unless otherwise indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles and Sections of this
Amendment.
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Section 5.4 References to the Agreement. From and after the execution of
this Amendment, all references in the Agreement to "this Agreement," "hereof,"
"herein" and similar terms shall mean and refer to the Agreement as amended by
this Amendment, and all references in other documents to the Agreement shall
mean the Agreement as amended by this Amendment. This Amendment shall not be
modified, supplemented or terminated in any manner whatsoever except by written
instrument signed by the party against which such modification, supplement or
termination is sought to be enforced.
Section 5.5 Ratification and Confirmation. The Agreement is hereby
ratified and confirmed and, except as herein amended, remains in full force and
effect.
Section 5.6 Governing Law. This Amendment shall be governed by and
construed in accordance with the Laws of the State of Missouri, without regard
to any applicable conflicts of Laws.
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IN WITNESS WHEREOF, Highwoods, Sub, and JCN have caused this Amendment to
be signed by their respective duly authorized officers as of the date first
written above.
HIGHWOODS PROPERTIES, INC.
By:
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Name:
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Title:
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JACKSON ACQUISITION CORP.
By:
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Name:
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Title:
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J.C. NICHOLS COMPANY
By:
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Name:
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Title:
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