Griffin Industrial Realty, Inc.
Extract: Bylaws Amended/Restated (Plain English Desc), Charter Amendment (Plain English Desc), Charter Amended/Restated (Plain English Desc) from a DEF 14A on 10/28/2020   Download
SEC Document
SEC Filing

The Board unanimously recommends that the stockholders of the Company approve a proposal for the Company to change its state of incorporation from Delaware to Maryland. The Company refers to this proposal as the Reincorporation Proposal. The following discussion summarizes certain aspects and consequences of the Reincorporation Proposal, which are related primarily to (a) what the Board of the Company believes are the

10


advantages of Maryland law over Delaware law, (b) certain other differences between the Maryland General Corporation Law (the “MGCL”) and the General Corporation Law of the State of Delaware (the “DGCL”), and (c) certain differences in the provisions of the Delaware Certificate of Incorporation and Griffin’s current Amended and Restated By-laws (the “Delaware Bylaws”), each as amended and restated, as compared to the charter and bylaws of the proposed new Maryland corporation, Griffin Industrial Maryland, Inc. (“Griffin Maryland”). Griffin Maryland, a wholly-owned subsidiary of the Company, was incorporated in Maryland on March 11, 2020, specifically for the purpose of effecting the change of the Company's state of incorporation and will have conducted no business and have no material assets or liabilities at the time of the Merger (as defined below).

If it is approved by the Company’s stockholders, the Reincorporation Proposal will be accomplished by the merger (the “Merger”) of the Company with and into Griffin Industrial Maryland, LLC, a Maryland limited liability company and a wholly-owned subsidiary of Griffin Maryland (“Griffin Maryland Sub”), whereby the separate legal existence of the Company will cease and Griffin Maryland Sub, as the surviving entity, will succeed to all business, properties, assets and liabilities of the Company. As a result of the Merger, the Company’s legal domicile will be changed from Delaware to Maryland. Griffin Maryland, as the parent of the surviving entity, will change its name to "Griffin Industrial Realty, Inc." as part of the Merger and, consequently, the reincorporation of the Company will not result in any immediate change in the Company's name, though Griffin Maryland could change its name in the future. In addition, the reincorporation of the Company will not, in and of itself, result in any change in the business, management, location of the principal executive offices, assets, liabilities or stockholders' equity of the Company other than the interposition of a holding company above the Company. Griffin will continue to operate as a real estate company principally engaged in developing, acquiring, managing and leasing industrial/warehouse properties. The directors and officers of the Company prior to the Merger will be the directors and officers of Griffin Maryland after the Merger. Except for the reduction in the annual franchise taxes paid to Delaware as described below and the creation of a holding company structure, the Company anticipates that the Merger will not cause any significant change in the business or financial condition of the Company, and the Company anticipates that the Merger will not cause any change in the Company’s management or day-to-day operations, except for any changes attributable to the differences between the Delaware organizational documents and the Maryland organizational documents, and between the MGCL and the DGCL, as generally described below. Griffin Maryland will have substantially identical share ownership and transfer provisions as the amendments to the Company’s amended and restated certificate of incorporation (the “Delaware Certificate of Incorporation” and, as amended, the “Amended Certificate of Incorporation”) to impose certain ownership and transfer restrictions in connection with the Company’s anticipated election to be taxed as a REIT for federal tax purposes commencing with the taxable year beginning January 1, 2021 (the “Approved Amendments”), which amendments were approved at the Company’s annual meeting of stockholders on May 7, 2020 (for additional information regarding the Approved Amendments, see the section of the Company’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 31, 2020, entitled, “Proposal IV. Amendments to the Company’s Certificate of Incorporation,” which section is incorporated herein by reference).

Upon the terms and subject to the conditions of the Agreement and Plan of Merger by and among the Company, Griffin Maryland Sub and Griffin Maryland (the “Merger Agreement”), at the Effective Time (as defined in the Merger Agreement) of the Merger, each outstanding share of the common stock, par value $0.01 per share, of the Company (the “Delaware Common Stock”) will be converted into one share of common stock, par value $0.01 per share, of Griffin Maryland (the “Maryland Common Stock”). In addition, at the Effective Time, each outstanding option, warrant or other right to purchase shares of Delaware Common Stock will continue outstanding as an option, warrant or other right to purchase shares of Maryland Common Stock upon the same terms and conditions as exist immediately prior to the Effective Time.

Following the Effective Time, each outstanding certificate representing shares of Delaware Common Stock will continue to represent the same number of shares of Maryland Common Stock, and delivery of certificates for shares of Delaware Common Stock will constitute "good delivery" for transactions in the shares of Maryland Common Stock. It will not be necessary for stockholders of the Company to exchange their existing stock certificates for stock certificates of Griffin Maryland.

11


The Delaware Common Stock is listed for trading on the Nasdaq Stock Market (“NASDAQ”) and trades under the symbol "GRIF". At the Effective Time, this symbol will, without interruption, represent shares of Maryland Common Stock, and shares of Maryland Common Stock will be listed for trading on NASDAQ. At the Effective Time, the Maryland Common Stock will be deemed registered under the Exchange Act by operation of Exchange Act Rule 12g-3(a).

Also at the Effective Time, the Company will be governed by the MGCL, the charter of Griffin Maryland (the “Maryland Charter”) and the Bylaws of Griffin Maryland (the “Maryland Bylaws”), which will result in certain changes in the rights of stockholders and other matters related to the Company. Many significant changes are discussed in this Consent Solicitation Statement under the section entitled “—Comparison of Delaware Organizational Documents and DGCL to Maryland Organizational Documents and MGCL,” but this Consent Solicitation Statement may not discuss all of the changes that are important to you as a stockholder. The summary provided herein is not intended to be a complete description of the Reincorporation Proposal or the differences between stockholders' rights under the DGCL and the MGCL and is qualified in its entirety by reference to the DGCL and MGCL, the Merger Agreement attached to this Consent Solicitation Statement as Appendix A, the Maryland Charter attached to this Consent Solicitation Statement as Appendix B, the Maryland Bylaws attached to this Consent Solicitation Statement as Appendix C, the Delaware Certificate of Incorporation and the Delaware Bylaws. The Maryland Charter and the Maryland Bylaws are sometimes referred to herein as the “Maryland organizational documents,” and the Delaware Certificate of Incorporation and the Delaware Bylaws are sometimes referred to herein as the “Delaware organizational documents.”