EX-10.6



 








Exhibit
10.6



Execution Version




 





AGREEMENT AND PLAN OF MERGER





Dated
as of August 9, 2005



by and between




COGDELL SPENCER INC.,




CS MERGER SUB LLC




AND




COGDELL SPENCER ADVISORS, INC.




 






 









 








	 	 	 	 	 
	ARTICLE I THE MERGER
	 	 	1	 
	Section 1.1. The Merger
	 	 	1	 
	Section 1.2. Effective Time
	 	 	1	 
	Section 1.3. Tax Treatment
	 	 	2	 
	Section 1.4. Certificate of Formation and Bylaws
	 	 	2	 
	Section 1.5. Managing Member
	 	 	2	 
	Section 1.6. Officers
	 	 	2	 
	Section 1.7. Additional Actions
	 	 	2	 
	ARTICLE
II EFFECTS OF THE MERGER;
	 	 	2	 
	Section 2.1. Effect on Common Stock
	 	 	2	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	3	 
	Section 3.1. Representations and Warranties of CSA
	 	 	3	 
	(a) Organization, Standing and Corporate Power of CSA
	 	 	3	 
	(b) Capital Structure
	 	 	3	 
	(c) Authority; Noncontravention
	 	 	3	 
	(d) Litigation
	 	 	3	 
	(e) Brokers; Schedule of Fees and Expenses
	 	 	3	 
	ARTICLE IV MISCELLANEOUS
	 	 	4	 
	Section 4.1. Termination
	 	 	4	 
	Section 4.2. Approval
	 	 	4	 
	Section 4.3. Amendments
	 	 	4	 
	Section 4.4. Counterparts
	 	 	4	 
	Section 4.5. Entire Agreement; No Third-Party Beneficiaries
	 	 	4	 
	Section 4.6. GOVERNING LAW
	 	 	4	 






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     AGREEMENT
AND PLAN OF MERGER (“Agreement”), dated as of August 9, 2005, by and
between COGDELL SPENCER INC., a Maryland corporation (“CSI”), CS MERGER SUB LLC, a Delaware
limited liability company and indirect wholly owned subsidiary of CSI (the “Merger Sub”)
and COGDELL SPENCER ADVISORS, INC., a North Carolina corporation (“CSA”).



RECITALS





	A.	 	The Board of Directors of CSI, the Managing Member of Merger Sub and the Board of Directors
of CSA each has determined that it is advisable and in the best interests of their respective
companies, stockholders and/or members that upon the terms and subject to the conditions set
forth in this Agreement, CSA will merge, in accordance with the laws of the State of Delaware
and the laws of the State of North Carolina, with and into the Company (the “Merger”)
with the Merger Sub being the surviving entity of the merger.
	 
	B.	 	As a result of the Merger, the Merger Sub will survive and be an indirect wholly owned
subsidiary of CSI.





AGREEMENT




     In consideration of the representations, warranties, covenants and agreements contained in
this Agreement, the parties agree as follows:



ARTICLE I




THE MERGER




     Section 1.1. The Merger.



     (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective
Time (as hereinafter defined), CSA shall be merged with and into the Merger Sub in accordance
with the Delaware Limited Liability Company Act (the
“Delaware Act”) and the [   ]
Act of the State of North Carolina (the “North Carolina Act”), whereupon the separate
company existence of CSA shall cease and the Merger Sub shall be the surviving company in the
merger (the “Surviving Company”).



     (b) The Merger shall have the effects set forth in the Delaware Act and the North Carolina Act.
Accordingly, from and after the Effective Time, the Surviving Company shall possess all the
rights, privileges, powers and franchises and be subject to all of the restrictions,
disabilities, liabilities and duties of the Merger Sub and CSA.



     (c) At the option of CSI, the Merger may be structured so that CSA shall be merged with and into
another direct or indirect wholly-owned subsidiary of CSI, which may be a corporation, limited
liability company or other entity as determined by CSI, with such other subsidiary of CSI
continuing as the surviving company, and each of CSI, the Merger Sub, CSA and such other
subsidiary shall execute an appropriate amendment to this Agreement in order to reflect such
restructuring; provided however, that such restructuring shall not affect the economic rights
of the parties hereto and, provided further, that such other subsidiary is treated as a
disregarded entity of CSI within the meaning of Treasury Regulation 1.368-2T(b)(1)(I)(A).



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     Section 1.2. Effective Time. The parties shall execute and file a Certificate of Merger with
the Secretary of State of the State of Delaware in accordance with the Delaware Act and shall make
all other filings or recordings required with respect to the Merger under the Delaware Act, and
shall execute and file Articles of Merger with the Secretary of State of the State of North
Carolina in accordance with the North Carolina Act and shall make all other filings or recordings
required with respect to the Merger under the North Carolina Act. The Merger shall become
effective at the later of the time of acceptance for filing by the Secretary of State of the State
of Delaware of the Certificate of Merger and the acceptance for filing by the Secretary of State of
the State of North Carolina of the Articles of Merger (the “Effective Time”).



     Section 1.3. Tax Treatment. The parties intend that the Merger qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”), and the parties hereto agree not to take any position for U.S. federal income tax
purposes inconsistent with such intended treatment.



     Section 1.4. Certificate of Formation and Bylaws. The certificate of formation (the
“Certificate of Formation”) and the Limited Liability Company Agreement (the “Operating
Agreement”) of the Merger Sub, as set forth in Exhibits A and B hereto, shall
become the Certificate of Formation and the Operating Agreement of the Surviving Company upon the
Effective Time until further amended in accordance with applicable Delaware law.



     Section 1.5. Managing Member. Cogdell Spencer LP shall be the Managing Member of the
Surviving Company from and after the Effective Date.



     Section 1.6. Officers. The officers of CSA immediately prior to the Effective Time shall be
the officers of the Surviving Company from and after the Effective Time and shall hold office until
their respective successors are duly elected or appointed and qualified in the manner provided in
the Certificate of Formation and the Operating Agreement of the Surviving Company, or as otherwise
provided by law.



     Section 1.7. Additional Actions. If, at any time after the Effective Time, the Surviving
Company determines that any deeds, bills of sale, assignments, assurances or any other acts or
things are necessary or desirable (a) to vest, perfect or confirm, of record or otherwise, in the
Surviving Company, its right, title or interest in, to or under any of the rights, properties or
assets of CSA by reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, the Managing Member of the Surviving Company shall be authorized to
execute and deliver, in the name and on behalf of CSA, all such deeds, bills of sale, assignments
and assurances and to do, in the name and on behalf of CSA, all such other acts and things
necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to or
under such rights, properties or assets in the Surviving Company or otherwise to carry out the
purposes of this Agreement.



ARTICLE
II




EFFECTS OF THE MERGER;




     Section 2.1. Effect on Common Stock At the Effective Time, the stockholders of CSA will
receive the number of shares of common stock of CSI reflected on Exhibit C in exchange for
all of their shares of common stock of CSA, which shares of common stock shall comprise all of the
issued and outstanding shares of common stock of CSA. All certificates representing shares of
common stock of CSI issued in the Merger shall bear legends as deemed appropriate by CSI, including
but not limited to a restrictive legend specifying that the shares of common stock of CSI
represented by such certificate are



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held by an affiliate of CSI (or, in the absence of such a legend, an appropriate notation
shall be made in the records of CSI and/or appropriate stop-transfer instructions shall be issued
to the transfer agent).




ARTICLE
III




REPRESENTATIONS AND WARRANTIES




     Section 3.1. Representations and Warranties of CSA. CSA represents and warrants to the
Merger Sub and CSI as follows:



     (a) Organization, Standing and Corporate Power of CSA. CSA is a corporation organized
and validly existing under the laws of the State of North Carolina and has the requisite corporate
power and authority to carry on its business as now being conducted. CSA is duly qualified to do
business and is in good standing in each jurisdiction in which the nature of its business makes
such qualification necessary, other than in such jurisdictions where the failure to be so
qualified, individually or in the aggregate, would not have a material adverse effect on the
business, properties, financial condition, results of operation or prospects of CSA (a “CSA
Material Adverse Effect”).



     (b) Capital
Structure. On the date of this Agreement, CSA has 300 shares of common
stock outstanding and 100,000 shares of common stock reserved for issuance. As of the date of this
Agreement, there are no outstanding securities, options, warrants, calls, rights, commitments,
agreements, arrangements or undertakings of any kind to which CSA is a party or by which such
entity is bound, obligating CSA to issue, deliver or sell, or cause to be issued, delivered or
sold, any shares of common stock or other ownership interests of CSA or obligating CSA to issue,
grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking (other than to CSA).



     (c) Authority; Noncontravention. CSA has the requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by CSA and the consummation by CSA of the transactions
contemplated hereby and thereby have been duly authorized by all necessary action on the part of
CSA. This Agreement has been duly executed and delivered by CSA and constitutes the valid and
binding obligation of CSA and is enforceable against CSA in accordance with its terms. The
execution and delivery of this Agreement by CSA does not, and the consummation of the transactions
contemplated hereby and compliance by CSA with the provisions of this Agreement does not and will
not, conflict with, or result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, or result in the creation of any lien upon any
of the properties or assets of CSA under the articles of incorporation of CSA.



     (d) Litigation. There is no suit, action or proceeding pending or, to the knowledge of
CSA, threatened against or affecting CSA that, individually or in the aggregate, could
reasonably be expected to (i) have a CSA Material Adverse Effect or (ii) prevent the
consummation of any of the transactions contemplated herein, nor is there any judgment,
decree, injunction, rule or order of governmental entity or arbitrator outstanding against CSA
having, or which, insofar as reasonably can be foreseen, in the future would have, any such
effect.



     (e) Brokers; Schedule of Fees and Expenses. No broker, investment banker, financial
advisor or other person is entitled to any broker’s, finder’s financial advisor’s or other
similar fee or commission in connection with the Merger or based upon arrangements made by or
on behalf of CSA.



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ARTICLE
IV




MISCELLANEOUS




     Section 4.1. Termination. This Agreement may be terminated and abandoned by action of the
Board of Directors of CSI, Managing Member of the Merger Sub or the Board of Directors of CSA at
any time prior to the Effective Time, whether before or after approval by the sole member of the
Merger Sub and the shareholders of CSA.



     Section 4.2. Approval. The respective obligation of each party to effect the Merger is
subject to adoption by the requisite vote of the shareholders of CSA and the sole member of the
Merger Sub pursuant to the Delaware Act and the North Carolina Act, as applicable.



     Section 4.3. Amendments. This Agreement may only be amended in accordance with Section
1.1(c) hereof and may not be amended in any other manner.



     Section 4.4. Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties on separate counterparts, and each such counterpart shall be deemed to be
an original but all such counterparts shall together constitute one and the same Agreement.



     Section 4.5. Entire Agreement; No Third-Party Beneficiaries. This Agreement and the other
agreements entered into in connection with the transactions (a) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Agreement and (b) except for the provisions of Section 3.1
are not intended to confer upon any person other than the parties hereto any rights or remedies.



     Section 4.6.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.



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     IN WITNESS WHEREOF, each of the Merger Sub, CSA and CSI has executed this Agreement, or has
caused this Agreement to be executed on its behalf by a representative duly authorized, all as of
the day and year first above written.



	 	 	 	 	 	 
	 

	 	COGDELL SPENCER INC.
	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name: Frank Spencer	 
	 

	 	 	 	Title: Chief Executive Officer and President	 
	 
	 	 	 	 	 
	 

	 	CS MERGER SUB LLC
	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name: Frank Spencer	 
	 

	 	 	 	Title: Authorized Signatory	 
	 
	 	 	 	 	 
	 

	 	COGDELL SPENCER ADVISORS, INC.
	 
	 
	 	 	 	 	 
	 

	 	By:	 	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name: Frank Spencer	 
	 

	 	 	 	Title: President	 






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EXHIBIT A




CERTIFICATE OF FORMATION






 









 






CERTIFICATE OF FORMATION




OF




CS MERGER SUB LLC




ARTICLE 1.

NAME




     The name of the limited liability company (the “Company”) is CS Merger Sub LLC.



ARTICLE 2.

REGISTERED AGENT




     The address of the registered office of the Company in the State of Delaware is 2711
Centerville Road, Suite 400 Wilmington, Delaware 19808 in the County of New Castle. The name of
the registered agent of the Company is Corporation Service Company.



ARTICLE 3.

DURATION




     The Company shall have perpetual duration, unless terminated in accordance with the Limited
Liability Company Act of the State of Delaware (the “Act”) or the operating agreement of the
Company.



ARTICLE 4.

PURPOSE




     The purpose of the Company is to engage in any lawful act or activity for which a limited
liability company may be organized under the Act.



     IN WITNESS WHEREOF, this Certificate has been executed as of this            day of August, 2005, by
the undersigned authorized signatory who affirms that, to the best of his knowledge and belief, the
facts stated herein are true.



	 	 	 	 	 
	 	CS Merger Sub LLC


	 
	 	/s/ Frank C. Spencer	 
	 	Frank C. Spencer 	 
	 	Authorized Signatory 	 
	 





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EXHIBIT B




LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY




3









 








OPERATING AGREEMENT




OF




CS MERGER SUB LLC




     This OPERATING AGREEMENT (the “Agreement”) of CS Merger Sub LLC (the “Company”), dated as of
August ___, 2005, is entered into by Cogdell Spencer LP, a Delaware limited partnership (the
“Member”).



     WHEREAS, the Company was formed on August 2, 2005, pursuant to, and in accordance with, the
Delaware Limited Liability Company Act (6 Del.C. §§ 18-101 et seq.), as amended from time to time
(the “Act”), by an authorized person, by the filing of a Certificate of Formation of the Company
with the Secretary of State of the State of Delaware, and the Member hereby adopts and ratifies the
Certificate of Formation and all acts taken by the authorized person in connection therewith;



     NOW, THEREFORE, in consideration of the premises contained herein and each party intending to
be legally bound, the parties hereto agree as follows:



          Name. The name of the limited liability company is CS Merger Sub LLC.




          Purpose. The Company is formed for the object and purpose of, and the nature of the
business conducted and promoted by the Company is, engaging in any lawful act or activity for which
limited liability companies may be formed under the Act and engaging in any activities necessary or
incidental to the foregoing.




          Formation. The filing of the Certificate of Formation of the Company with the
Secretary of State of the State of Delaware on August 2, 2005, pursuant to the Act is hereby
ratified and approved.




          Registered Office. The address of the registered office of the Company in the State
of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19808 in the County of New Castle.




          Registered Agent. The name of its Registered Agent at such address is Corporation
Service Company.




          Members.
 is the sole managing member (the “Managing Member”) and
sole member of the Company and shall be shown as such on the books and records of the Company. No
other person shall be admitted as a managing member or member of the Company, and no additional
interest in the Company shall be issued, without the approval of the Managing Member and
appropriate amendments to this Agreement. The name and the address of the Managing Member is as
follows: Cogdell Spencer LP, 4401 Barclay Downs Drive, Suite 300, Charlotte, North Carolina
28209-4670, Attention: Mr. Frank Spencer.




          Management of the Company. The Managing Member shall have sole authority to manage
the business and affairs of the Company, to execute documents on behalf of the Company and to bind
the Company.




          Initial Capital Contributions and Interests. The initial capital contribution of the
Member shall be $0.00. On the date hereof, the Member owns a 100% interest in the Company.




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          Additional Contributions. The Member is not required to make additional capital
contributions to the Company.




          Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the
first to occur of the following: (a) the sale, exchange or other disposition of all or
substantially all of the Company’s assets; (b) the election of the Managing Member; or (c) the
bankruptcy or dissolution of the Managing Member.




          Winding Up of Company. Upon dissolution, the Company’s business shall be liquidated
in an orderly manner. The Managing Member shall act as the liquidator to wind up the affairs of
the Company pursuant to this Agreement. In performing its duties, the liquidator is authorized to
sell, distribute, exchange or otherwise dispose of the assets of the Company in accordance with the
Act and in any reasonable manner that the liquidator shall determine to be in the best interest of
the Member or its successors-in-interest.




          Distributions. The Managing Member shall distribute funds at such times and in such
amounts as it may determine. In determining the amount of funds to distribute pursuant to this
Section 12, the Managing Member may consider such factors as the need to allocate funds to
any reserves for Company contingencies or any other Company purposes that the Managing Member
reasonably deems necessary or appropriate.




          Certification of Interests. The limited liability interest of the Company may or may
not be certificated, and if certificated, such certificates shall constitute securities governed by
Article 8 of the Delaware Uniform Commercial Code.




          Liability of Member. The Member shall not have any liability for the debts,
obligations and liabilities of the Company except to the extent provided in the Act.




          Indemnification. The Company shall indemnify and hold harmless the Member, employee
or other person for any claim arising out of such entity’s or person’s relationship to the Company,
to the extent companies may indemnify persons under the Delaware General Corporation Law.




          Governing Law. This Agreement shall be governed by, and construed under, the laws of
the State of Delaware, all rights and remedies being governed by such laws.




          Books and Records. The books and records of the Company will be kept at Cogdell
Spencer LP, 4401 Barclay Downs Drive, Suite 300, Charlotte, North Carolina 28209-4670, Attention:
Mr. Frank Spencer.




          Authorized Person. Jim Cogdell, Frank Spencer and any person authorized to sign on
behalf of the Managing Member are each authorized to sign on behalf of the Company.




          Modification, Waiver or Termination. No modification, waiver or termination of this
Agreement, or any part hereof, shall be effective unless made in writing and signed by the party or
parties sought to be bound thereby.




          Benefits of Agreement. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditor of the Company or of any other person not a party to this
Agreement.




          Headings. The titles of Sections of this Agreement are for convenience of reference
only and shall not define or limit any of the provisions of this Agreement.




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[Remainder of page intentionally left blank]




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     IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the date first written above.



	 	 	 	 	 
	 	COGDELL SPENCER LP
	 	By:  	CS Business Trust I, its General Partner
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Frank Spencer 	 
	 	 	Title:  	Trustee 	 



 









 






	 	 	 	 	 



EXHIBIT C




	 	 	 	 	 
	Name	 	Shares of Common Stock
	 
	James Cogdell

	 	 	1,244,503	 
	 
	 	 	 	 
	Frank Spencer

	 	 	219,616	 







2