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EX-2.1 - SUMMIT HOTEL PROPERTIES LLC | v193295_ex2-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 5,
2010
SUMMIT
HOTEL PROPERTIES, LLC
(Exact
name of registrant as specified in its charter)
South
Dakota
|
000-51955
|
20-0617340
|
(State
or other jurisdiction
|
(Commission
File Number)
|
(I.R.S.
employer identification no.)
|
of
incorporation or organization)
|
2701
South Minnesota Avenue, Suite 6, Sioux Falls, South Dakota 57105
(Address
of principal executive offices, including zip code)
Registrant’s
Telephone Number, Including Area Code: (605)
361-9566
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
x
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
1.01 Entry into a Material Definitive Agreement.
On August 5, 2010, Summit
Hotel Properties, LLC (the “Company”) entered into an Agreement and Plan of
Merger (the “Merger Agreement”) with Summit Hotel OP, LP, a newly-formed
Delaware limited partnership (the “OP”). The sole general
partner of the OP is Summit Hotel Properties, Inc. (“Summit REIT”), a newly
formed Maryland corporation that will elect to be treated as a real estate
investment trust, or REIT, for U.S. federal income tax
purposes. Summit REIT intends to undertake an underwritten initial
public offering (“IPO”) of its common stock and will apply to list its common
stock on the New York Stock Exchange. The OP will be the operating partnership
of Summit REIT, in a structure utilized by many other publicly traded REITs, and
will continue the Company’s hotel ownership business. Each of the OP
and Summit REIT are affiliates of the Company and were organized to effect the
reorganization of the Company contemplated by the Merger Agreement and related
transactions.
Pursuant to the Merger Agreement,
assuming the conditions to closing are satisfied or waived, at
closing:
|
§
|
the
Company will merge with and into the OP with the OP as the surviving
entity (the “Merger”);
|
|
§
|
the
OP will be the successor to the assets and liabilities of the
Company;
|
|
§
|
the
current members of the Company will receive an aggregate of 9,993,992
common units of a single class of limited partnership interests in the OP
(“OP units”);
|
|
§
|
Class
A and Class A-1 members of the Company will receive accrued and unpaid
priority returns on their membership interests through August 31,
2010;
|
|
§
|
accrued
and unpaid returns priority returns on Class A and Class A-1 membership
interests of the Company for the period of September 1, 2010 through the
closing of the Merger may be paid with any available cash after satisfying
working capital requirements, reserve requirements and payments to lenders
in the discretion of management of the Company;
and
|
|
§
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the
Company will cease to exist, the membership interests of the Company will
become null and void and the former members of the Company will become
limited partners of the OP.
|
The members of the Company will receive
a fixed number of OP units in the Merger based on the number of OP units
allocated to each class of membership interest in the Company owned by the
member and the ratio of that member’s adjusted capital contribution to the class
to the total adjusted capital contributions to the class. The
following table describes the total number of OP units to be received in the
Merger by each class of membership interests in the Company:
Aggregate
Adjusted
Capital Contributions as
of
June
30, 2010
|
Total
OP units
to be issued
in the
Merger |
|||||||
Class
A
|
$ | 119,138,717 | 6,283,197 | |||||
Class
A-1
|
44,237,893 | 2,433,040 | ||||||
Class
B
|
6,687,944 | 352,712 | ||||||
Class
C
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17,540,183 | 925,043 | ||||||
Total
|
$ | 187,604,737 | 9,993,992 |
Beginning 12 months after completion of
the merger, OP units will be redeemable by the holder, on the first day of each
calendar quarter after 60 days’ advance written notice, for cash based on an
average of the then-current market prices of Summit REIT common stock or, at the
election of the OP, shares of Summit REIT common stock, on a one-for-one
basis.
The Merger Agreement includes customary
representations and warranties of the parties. Completion of the
Merger is subject to satisfaction of a number of conditions, including (i)
approval by the required members of the Company of (a) an amendment to the Third
Amended and Restated Operating Agreement for the Company to clarify the vote
required to approve a merger of the Company (the “Amendment”) and (b) the Merger
Agreement and (ii) completion of the IPO.
The Merger Agreement permits the OP to
terminate the Merger Agreement if the IPO is not completed. The Company may
terminate the Merger Agreement if the Merger has not been completed by September
30, 2011.
The
Amendment and the Merger Agreement and related transactions were approved
unanimously by the full board of managers of the Company.
The foregoing description of certain
terms of the Merger Agreement does not purport to be complete and is qualified
in its entirety by reference to the full text of the Merger Agreement, a copy of
which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is
incorporated by reference herein.
The Merger Agreement has been included
to provide investors and security holders with information regarding its terms.
It is not intended to provide any other factual information about the Company or
the OP. The representations, warranties and covenants contained in the Merger
Agreement were made only for purposes of the Merger Agreement and as of
specified dates and were made solely for the benefit of the parties to the
Merger Agreement. The representations and warranties may have been made for the
purpose of allocating contractual risk between the parties to the Merger
Agreement instead of establishing these matters as facts, and may be subject to
standards of materiality applicable to the contracting parties that differ from
those applicable to investors. Investors should not rely on the representations,
warranties and covenants or any descriptions thereof as characterizations of the
actual state of facts or condition of the Company, the OP or any of their
respective subsidiaries or affiliates. Moreover, information concerning the
subject matter of the representations and warranties may change after the date
of the Merger Agreement, which subsequent information may or may not be fully
reflected in the Company’s public disclosures.
Important
Additional Information About the Transaction
The proposed Amendment and Merger will
be submitted to the members of the Company for their consideration at a special
meeting of members. In connection the Amendment and Merger, the OP
has filed with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-4 (File No. 333-168685) that includes a preliminary proxy
statement of the Company and a prospectus of the OP. The S-4
registration statement has not yet become effective. This current
report does not constitute an offer of any securities for sale. The
information in the preliminary proxy statement/prospectus is not complete and
may be changed. The OP may not sell the securities offered by the
proxy statement/prospectus and the Company may not solicit members of the
Company with respect to the Amendment and the Merger until the S-4 registration
statement is declared effective by the SEC.
The members of the Company are urged
to read the definitive proxy statement/prospectus when complete and any other
relevant documents filed with the SEC as well as any amendments or supplements
to those documents, because they will contain important information that members
should consider before making a decision about the Amendment and the
Merger. You will receive the definitive proxy
statement/prospectus from the Company by mail after the S-4 registration
statement is declared effective. In addition, you may obtain a free
copy of the definitive proxy statement/prospectus, as well as other filings
containing information about the Company at the SEC’s web site at www.sec.gov.
Participants
in the Solicitation
The Company, the OP, Summit REIT and
their respective executive officers, directors and managers and other persons
may be deemed to be participants in the solicitation of proxies in respect of
the proposed transactions. Information regarding the Company’s
executive officers and board of managers is available in its Annual Report on
Form 10-K for the year ended December 31, 2009, which was filed with the SEC on
March 31, 2010, and information regarding Summit REIT’s directors and executive
officers is available in the proxy statement/ prospectus. Other
information regarding the participants in the proxy solicitation and a
description of their direct and indirect interests, by security holdings or
otherwise, are contained in the proxy statement/prospectus and other relevant
materials filed with the SEC. You may obtain free copies of these
documents as described in the preceding paragraph.
Item
9.01 Financial Statements and Exhibits.
(d)
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Exhibits.
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2.1
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Agreement
and Plan of Merger dated August 5,
2010
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
SUMMIT HOTEL PROPERTIES, LLC | |||
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By:
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/s/ Kerry W. Boekelheide | |
Name: Kerry W. Boekelheide | |||
Title: Chief Executive Officer |
Dated: August
11, 2010
Exhibit
Index
Exhibit No.
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Description
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2.1
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Agreement
and Plan of Merger dated August 5,
2010
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