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EXHIBIT 3.4
APPENDIX B
AGREEMENT AND PLAN OF MERGER
OF
VINLAND PROPERTY CORPORATION
(a California corporation)
AND
TARRAGON REALTY INVESTORS, INC.
(a Nevada corporation)
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of July
24, 1997, is by and between Vinland Property Corporation, a California
corporation ("VPT California"), and Tarragon Realty Investors, Inc., a Nevada
corporation ("TRII Nevada").
WHEREAS, VPT California is a California corporation with its resident
agent therein located at CT Corporation System, 000 Xxxx Xxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000; and
WHEREAS, the shares of stock that VPT California has authority to issue
are 30,000,000 shares, of which 20,000,000 shares, par value $0.01 per share,
are designated Common Stock (the "California Common Stock") and 10,000,000
shares, par value $0.01 per share, are designated Special Stock; and
WHEREAS, TRII Nevada is a Nevada corporation with its registered office
therein located at CT Corporation System, Xxx Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx
00000; and
WHEREAS, the total number of shares of stock which TRII Nevada has
authority to issue is 30,000,000 shares, of which 20,000,000 shares, par value
$0.01 per share, are designated Common Stock ("Nevada Common Stock"), and
10,000,000 shares, par value $0.01 per share, are designated Special Stock; and
WHEREAS, the General Corporation Law of the State of Nevada permits the
merger of one or more foreign corporations with one or more domestic
corporations into a single corporation; and
WHEREAS, VPT California and TRII Nevada and the respective Boards of
Directors thereof deem it advisable and to the advantage, welfare, and best
interests of said corporations and their respective stockholders to merge VPT
California with and into TRII Nevada pursuant to the provisions of the Nevada
Law upon the conditions hereinafter set forth; NOW, THEREFORE, in consideration
of the foregoing and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. THE MERGER. Upon the terms and subject to the conditions hereof,
the Merger shall be consummated in accordance with the General Corporation Law
of Nevada (the "Nevada Law") and the General Corporation Law of California (the
"California Law") on July 25, 1997, or as soon thereafter as is reasonably
practicable. At the Effective Time (as hereinafter defined) and subject to and
upon the terms and conditions of this Agreement, the Nevada Law and the
California Law, VPT California shall be merged with and into TRII Nevada (the
"Merger"), the separate corporate existence of VPT California shall cease, and
TRII Nevada shall continue as the surviving corporation.
2. EFFECTIVE TIME. On July 25, 1997, or as soon thereafter as is
reasonably practicable, the parties hereto shall cause the Merger to be
consummated by filing articles of merger with the Secretary of State of Nevada
and the documents required by Section 1108 of the California Law with the
Secretary of State of
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California, in such form as required by, and executed in accordance with, the
relevant provisions of the Nevada Law and the California Law. The Merger shall
become effective upon the filing of such articles of merger with the Secretary
of State of Nevada (the "Effective Time").
3. EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in Section 78.459 of the Nevada Law.
4. ARTICLES OF INCORPORATION. At the Effective Time, the Articles
of Incorporation of TRII Nevada, as in effect immediately prior to the
Effective Time, shall remain the Articles of Incorporation of TRII Nevada as
the surviving corporation until thereafter further amended as provided by law.
5. BYLAWS. The Bylaws of TRII Nevada, as in effect immediately
prior to the Effective Time, shall remain the Bylaws of TRII Nevada as the
surviving corporation until thereafter amended as provided by law.
6. DIRECTORS. The directors of TRII Nevada immediately prior to the
Effective Time shall remain the directors of TRII Nevada and will hold office
from the Effective Time until their successors are duly elected or appointed
and qualified in the manner provided in the Articles of Incorporation and the
Bylaws of TRII Nevada, or as otherwise provided by law.
7. OFFICERS. The officers of TRII Nevada immediately prior to the
Effective Time shall remain the officers of TRII Nevada and will hold office
from the Effective Time until their successors are duly elected or appointed
and qualified in the manner provided in the Articles of Incorporation and the
Bylaws of TRII Nevada, or as otherwise provided by law.
8. ADDITIONAL ACTIONS. If, at any time after the Effective Time,
TRII Nevada shall consider or be advised that any deeds, bills of sale,
assignments, assurances, or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in TRII Nevada
its right, title or interest in, to or under any of the rights, properties or
assets of VPT California acquired or to be acquired by TRII Nevada as a result
of, or in connection with, the Merger or otherwise to carry out this Agreement,
the officers and directors of TRII Nevada shall be authorized to execute and
deliver, in the name and on behalf of VPT California, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of VPT California, all such other actions and things as may be necessary or
desirable to vest, perfect or confirm any and all right, title and interest in,
to and under such rights, properties or assets in TRII Nevada or otherwise to
carry out this Agreement.
9. CONVERSION OF SECURITIES. At the Effective Time, by virtue of
the Merger and without any action on the part of TRII Nevada, VPT California or
the holder of any of the following securities
(a) each of the shares of VPT California Common Stock issued
and outstanding immediately prior to the Effective Time, other than any
shares of VPT California Common Stock to be cancelled pursuant to
Section 9(b) hereof, shall be converted into one validly issued, fully
paid and nonassessable share of TRII Nevada Common stock, upon surrender
of the certificate representing such share;
(b) each share of VPT California Common Stock held in the
treasury of VPT California immediately prior to the Effective Time shall
be cancelled and extinguished and no payment or other consideration
shall be made with respect thereto;
(c) each share of TRII Nevada Common Stock issued and
outstanding immediately prior to the Effective Time shall be cancelled;
and
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(d) from and after the Effective Time, holders of certificates
formerly evidencing shares of VPT California Common Stock shall have
rights as stockholders of TRII Nevada (and not VPT California) in
accordance with applicable law.
10. SURRENDER OF SHARES; STOCK TRANSFER BOOKS. Each holder of a
certificate or certificates formerly representing any shares of VPT California
Common Stock converted in the Merger pursuant to Section 9(a) shall surrender
such certificate or certificates to TRII Nevada as promptly as practicable.
Upon surrender by such holder to TRII Nevada of a certificate, together with
such other instruments and acknowledgments as TRII Nevada may require, the
holder of such certificate shall be entitled to receive in exchange therefor an
equal number of shares of Nevada Common Stock represented by such certificate,
and such former certificate shall forthwith be cancelled. At the Effective
Time, the stock transfer books of VPT California shall be closed and there
shall be no further registration of transfers of shares of VPT California
Common Stock on the records of VPT California. No interest shall accrue or be
paid on any cash payable upon the surrender of a certificate or certificates
which immediately prior to the Effective Time represented outstanding shares of
VPT California Common Stock.
11. CERTAIN CHANGES. The Boards of Directors of TRII Nevada and VPT
California may amend this Agreement at any time prior to the filing of the
articles of merger with the Secretary of State of Nevada, provided that an
amendment made subsequent to the adoption of the Merger by the stockholders of
TRII Nevada and VPT California shall not (1) alter or change the amount of
consideration to be received in exchange for or on conversion of the shares of
any class or series thereof of VPT California, (2) further alter or change any
term of the Articles of Incorporation of TRII Nevada, or (3) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of the shares of any class or series of TRII
Nevada or VPT California.
12. TERMINATION. This Agreement may be terminated and the Merger
abandoned at any time prior to the filing of the articles of merger with the
Secretary of State of Nevada, notwithstanding approval hereof by the
stockholders of TRII Nevada or VPT California or by the Board of Directors of
TRII Nevada or VPT California.
13. TAX EFFECT. The parties hereby agree to treat the Merger for
federal income tax purposes as a reorganization within the meaning of Section
368(a)(1)(f) of the Internal Revenue Code, with no gain or loss recognized by
TRII Nevada or its stockholders or by VPT California or its shareholders.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which, collectively, shall constitute one and the same instrument representing
this Agreement among the parties hereto, and it shall not be necessary for the
proof of this Agreement that any party produce or account for more than one
such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Merger to be executed by their respective officers as of the 24th day of July,
1997.
ATTEST: VINLAND PROPERTY CORPORATION
/s/ XXXXXXXX X. XXXXXXX
----------------------------------- By: /s/ XXXXXXX X. XXXXXXXX
Secretary ---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: President
--------------------------
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ATTEST: TARRAGON REALTY INVESTORS, INC.
/s/ XXXXXXXX X. XXXXXXX
----------------------------------- By: /s/ XXXXXXX X. XXXXXXXX
Secretary ---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: President
--------------------------
The undersigned, being the President of Vinland Property Corporation,
does hereby certify that (a) the holders of 100% of the outstanding stock of
said corporation were entitled to vote on the foregoing Agreement and Plan of
Merger, (b) the principal terms of the agreement in the form attached were
approved by 59% of the outstanding shares and (c) such vote exceeded the
majority vote required to approve the foregoing Agreement and Plan of Merger.
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx, President
VINLAND PROPERTY CORPORATION
The undersigned, being the President of Tarragon Realty Investors, Inc.,
does hereby certify that the holder of all of the outstanding stock of said
corporation dispensed with a meeting and vote of stockholders, and such sole
stockholder consented in writing, pursuant to the provisions of Section 78.320
of the General Corporation Law of the State of Nevada, to the adoption of the
foregoing Agreement and Plan of Merger.
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx, President
TARRAGON REALTY INVESTORS, INC.
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XXXXX XX )
)
XXXXXX XX XXX XXXX )
This instrument was acknowledged before me on the 24th day of July 1997
by Xxxxxxx X. Xxxxxxxx, President of Vinland Property Corporation.
/s/ XXXXXX X. XXXXXXX
----------------------------------------------------
Notary Public in and for said County and State
STATE OF ) XXXXXX X. XXXXXXX
) NOTARY PUBLIC STATE OF NEW YORK
COUNTY OF NEW YORK ) NO. 4980637
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES APRIL 22, 1999
This instrument was acknowledged before me on the 24th day of July of
1997 by Xxxxxxx X. Xxxxxxxx, President of Tarragon Realty Investors, Inc.
/s/ XXXXXX X. XXXXXXX
----------------------------------------------------
Notary Public in and for said County and State
XXXXXX X. XXXXXXX
NOTARY PUBLIC STATE OF NEW YORK
NO. 4980637
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES APRIL 22, 1999
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