Exhibit 10.3
AMENDED AND RESTATED PLAN AND AGREEMENT OF MERGER
THIS AMENDED AND RESTATED PLAN AND AGREEMENT OF MERGER dated as of
December 24, 2001, pursuant to Article 5.01 of the Texas Business Corporation
Act (the "Texas Act"), by and between Texas Commercial Resources, Inc., a Texas
corporation ("TCRI 1"), and Texas Commercial Resources, Inc., a Texas
corporation formerly known as EZUtilities, Corp. ("TCRI 2"), such corporations
being hereinafter sometimes collectively referred to as the "Constituent
Corporations."
WITNESSETH:
WHEREAS, TCRI 1 is a corporation duly organized and validly existing
under the laws of Texas having (i) its registered office in the State of Texas
at 0000 Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, with the name of its
registered agent at such address being Xxxxx X. Xxxxx, and (ii) an authorized
capital stock consisting of 120,000,000 shares of common stock, par value $0.001
per share (the "TCRI 1 Common Stock"), of which 2,261,483 shares are issued,
outstanding and owned at the date hereof and 20,000,000 shares of preferred
stock, par value $1.00 per share, none of which are outstanding at the date
hereof; and
WHEREAS, TCRI 2 is a corporation duly organized and validly existing
under the laws of Texas having (i) its registered office in the State of Texas
at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, with the name of its
registered agent at such address being Xxxxx Xxxxxxx, and (ii) an authorized
capital stock consisting of 100,000,000 shares of common stock, par value $0.001
per share (the "TCRI 2 Common Stock"), of which 9,081,400 shares are issued and
outstanding at the date hereof, and 7,349,820 shares of which are owned by TCRI
1, and 20,000,000 shares of preferred stock, par value $1.00 per shares, none of
which are outstanding at the date hereof; and
WHEREAS, the respective Boards of Directors of TCRI 1 and TCRI 2 deem
it advisable and in the best interests of the Constituent Corporations that TCRI
1 be merged with and into TCRI 2 (the corporation surviving such merger being
hereinafter sometimes referred to as the "Surviving Corporation"), as authorized
by the Texas Act and pursuant to the terms and conditions hereinafter set forth,
and each such Board of Directors has duly approved this Plan and Agreement of
Merger;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of setting forth
the terms and conditions of the merger of TCRI 1 with and into TCRI 2 (the
"Merger"), the mode of carrying the Merger into effect, the manner and basis of
converting the shares of stock of each of the Constituent Corporations into
shares of stock of the Surviving Corporation and such other details and
provisions as are deemed necessary or desirable, the parties hereto have agreed
and do hereby agree, subject to the approval or adoption of this Plan and
Agreement of Merger by the requisite vote of the shareholders of each of the
Constituent Corporations and subject to the terms and conditions set forth
herein, as follows:
1. Name of Corporation Surviving the Merger. At the Effective Time of
the Merger (as hereinafter defined) TCRI 1 shall be merged with and
into TCRI 2, which shall not be a new corporation but which shall
continue its corporate existence as a Texas corporation to be governed
by the laws of Texas, and the Surviving Corporation shall continue to
be named "Texas Commercial Resources, Inc."
2. Certain Terms and Conditions of the Merger. Certain of the terms
and conditions of the Merger (in addition to those set forth elsewhere
in this Plan and Agreement of Merger) are as follows:
(a) At the Effective Time of the Merger the Constituent Corporations
shall be merged into a single corporation, which shall be the Surviving
Corporation.
(b) At the Effective Time of the Merger the separate existence of
TCRI 1 shall cease.
(c) At the Effective Time of the Merger the Surviving Corporation
shall, without transfer, thereupon and thereafter possess all of the
rights, privileges, immunities, powers, and franchises, of a public as
well as a private nature, and be subject to all of the restrictions,
disabilities and duties of each of the Constituent Corporations; and
all real, personal, and mixed property and all debts due (on whatever
account, for stock subscriptions as well as for all other choses in
action and all and every other interest, of or belonging to each of the
Constituent Corporations) to either of the Constituent Corporations
shall be vested in the Surviving Corporation without further act or
deed; and all property, rights, privileges, powers, franchises, and all
and every other interest shall thereafter be the property of the
Surviving Corporation as effectually as if they were of the respective
Constituent Corporations, and the title to any real estate vested by
deed or otherwise in either of the Constituent Corporations shall not
revert or be in any way impaired by reason of the Merger; but all
rights of creditors and all liens upon any property of either of the
Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities, and duties
had been incurred or contracted by the Surviving Corporation.
(d) All corporate acts, plans, policies, contracts, approval, and
authorizations of TCRI 1 and its shareholders, Board of Directors,
committees elected or appointed by its Board of Directors, officers,
and agents that were valid and effective immediately prior to the
Effective Time of the Merger shall be taken for all purposes as the
acts, plans, policies, contracts, approvals, and authorizations of the
Surviving Corporation and shall be effective and binding thereon as the
same were with respect to TCRI 1. Any employees of TCRI 1 at the
Effective Time of the Merger shall become the employees of the
Surviving Corporation.
(e) The Constituent Corporations do hereby certify and agree that at
and after the Effective Time of the Merger the Surviving Corporation
may be served with process in the State of Texas in any proceedings for
enforcement of any obligation of TCRI 1 as well as for enforcement of
any obligation of TCRI 2 arising from the Merger, and in any proceeding
for the enforcement of the rights of a dissenting shareholder of TCRI 1
against the Surviving Corporation; the Constituent Corporations do
hereby irrevocably appoint the Secretary of State of the State of Texas
as the agent of the Surviving Corporation to accept service of process
in any such suit or other proceeding; and the Surviving Corporation
agrees that it will promptly pay to the dissenting shareholders of TCRI
1 the amount, if any, to which they shall be entitled under the Texas
Act with respect to the rights of dissenting shareholders.
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3. Directors and officers. The directors and officers of TCRI 2
immediately prior to the Effective Time of the Merger shall be and
constitute the directors and officers of the Surviving Corporation, to
serve in accordance with the By-laws of the Surviving Corporation until
their respective successors shall have been duly elected and qualified.
4. Articles of Incorporation and By-laws. The Articles of
Incorporation and By-laws of the Surviving Corporation shall be as
follows:
(a) The Articles of Incorporation of TCRI 2, as constituted and in
effect immediately prior to the Effective Time of the Merger, shall,
from and after the Effective Time of the Merger, be and constitute the
Articles of Incorporation of the Surviving Corporation until amended as
provided by law.
(b) The By-laws of TCRI 2 as constituted and in effect immediately
prior to the Effective Time of the Merger shall, from and after the
Effective Time of the Merger, be and constitute the By-laws of the
Surviving Corporation until amended in the manner provided by law.
5. Manner and Basis of Converting Stock. The manner and basis of
converting the shares of capital stock of each of the Constituent
Corporations into shares of capital stock of the Surviving Corporation
and the mode of carrying the Merger into effect are as follows:
(a) Each share of TCRI 2 Common Stock issued and outstanding
immediately prior to the Effective Time of the merger, except for
shares of TCRI 2 Common Stock owned by TCRI 1, shall, without any
action on the part of any shareholder, remain issued and outstanding
from and after the Effective Time of the Merger and shall represent one
share of the Common Stock of the Surviving Corporation, fully paid and
nonassessable.
(b) Each share of TCRI 2 Common Stock held by TCRI 1 immediately
prior to the Effective Time of the Merger shall, at the Effective Time
of the Merger, cease to exist and the certificates representing such
shares of TCRI 2 Common Stock shall, as promptly as practicable, be
cancelled and no stock of the Surviving Corporation shall be issued on
account thereof.
(c) At the Effective Time of the Merger, all shares of TCRI
1 Common Stock issued and outstanding immediately prior to the
Effective Time of the Merger (except for shares of TCRI 1 Common
Stock held as treasury shares of TCRI 1, all of which shall cease to
exist and be cancelled) shall, by virtue of the Merger and without
any action on the part of the holders thereof, automatically be
converted into and shall thereafter be exchangeable for shares of
TCRI Common Stock, with each such share of TCRI 1 Common Stock being
converted into three and one-quarter (3.25) shares of TCRI 2 Common
Stock. After the Effective Time of the Merger, each holder of an
outstanding certificate or certificates representing shares of TCRI 1
Common Stock issued and outstanding immediately prior to the
Effective Time of the Merger (excluding shares held as treasury
shares by TCRI 1) may surrender such certificate or certificates to
Surviving Corporation along with such other documents as may be
deemed necessary by the Surviving Corporation effectively to
surrender and exchange such certificate or certificates. As promptly
as practical after such surrender, each such holder shall receive
from the Surviving Corporation, in exchange for such certificate or
certificates so surrendered, a certificate representing the number of
shares of TCRI 2 Common Stock into which the share of TCRI 1 Common
Stock so surrendered shall have been converted as aforesaid, all
fractional shares to be rounded to the nearest hundredth of a share.
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(d) Until surrendered and exchanged pursuant hereto, each
certificate that immediately prior to the Effective Time of the
Merger represented outstanding shares of TCRI 1 Common Stock (but not
certificates representing shares held as treasury shares by TCRI 1)
shall be deemed for all corporate purposes of the Surviving
Corporation, subject, however, to the other provisions of this
Section 5, to evidence the ownership of the number of shares of TCRI
2 Common Stock into which the shares of TCRI 1 Common Stock
represented thereby shall have been converted. No cash or stock
dividend payable, no certificate representing split shares
deliverable, and no other distribution payable or deliverable to
holders of record of TCRI 2 Common Stock at any time subsequent to
the Effective Time of the Merger shall be paid or delivered to the
holder of any certificate that at the Effective Time of the Merger
represented TCRI 1 Common Stock unless and until such certificate is
surrendered to the Surviving Corporation. However, upon such
surrender there shall be paid or delivered to the initial holder of
record of the certificate or certificates for TCRI 2 Common Stock
issued in exchange therefor, the amount of cash, a certificate
representing the number of shares of TCRI 2 Common Stock, or the
other property resulting from any such dividends, splits, or other
distributions, as the case may be, which shall have theretofore
become payable or deliverable with respect to TCRI 2 Common Stock
subsequent to the Effective Time of the Merger. No interest shall be
payable with respect to such payment or delivery of any dividends or
other distributions upon the surrender of certificates that
represented TCRI 1 Common Stock at the Effective Time of the merger.
(e) All shares of TCRI 2 Common Stock into which shares of the TCRI 1
Common Stock shall have been converted pursuant to this Section 5 shall
be deemed to have been issued in full satisfaction of all rights
pertaining to such converted shares and shall, when issued pursuant to
the provisions hereof, be validly issued, fully paid, and nonassessable.
(f) The stock transfer books of TCRI 1 pertaining to TCRI 1 Common
Stock shall be closed at the Effective Time of the Merger and,
thereafter, no transfer of any shares of TCRI 1 Common Stock shall be
recorded thereon. In the event a transfer of ownership of shares of TCRI
1 Common Stock is not recorded on the stock transfer books of TCRI 1, a
certificate or certificates representing the number of shares of TCRI 2
Common Stock into which such shares of TCRI 1 Common Stock shall have
been converted in connection with the Merger may be issued to the
transferee of such shares of TCRI 1 Common Stock if the certificate or
certificates representing such shares of TCRI 1 Common Stock is or are
surrendered to the Surviving Corporation accompanied by all documents
deemed necessary by the Surviving Corporation to evidence and effect
such transfer of ownership of shares of TCRI 1 Common Stock and by any
applicable stock transfer tax with respect to such transfer.
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6. Other Provisions with Respect to the Merger. Certain other
provisions of the Merger (in addition to those set forth elsewhere in
this Plan and Agreement of Merger) are as follows:
(a) This Plan and Agreement of Merger shall be submitted to the
shareholders of each of the Constituent Corporations in accordance with
the provisions Articles 5.03 of the Texas Act. After approval and
adoption of this Plan and Agreement of Merger by the shareholders of
each of the Constituent Corporations all required documents shall be
certified, executed, verified, acknowledged, filed, and recorded and all
required acts shall be done in order to accomplish the Merger under the
provisions of the applicable statutes of the State of Texas.
(b) If the Merger is consummated, the Surviving Corporation shall
bear and pay all costs and expenses incurred by each of the Constituent
Corporations. If the Merger is not consummated, all expenses in
connection herewith will be paid by the party incurring such expense.
(c) At any time prior to the Effective Time of the Merger,
whether before or after action thereon by the shareholders of the
Constituent Corporations, this Plan and Agreement of Merger may be
terminated by mutual consent of the Constituent Corporations,
expressed by action of their respective Boards of Directors.
(d) The Constituent Corporations, by mutual consent of
their respective Boards of Directors, to the extent permitted by law,
may amend, modify, supplement, and interpret this Plan and Agreement
of Merger in such manner as may be mutually agreed upon by them in
writing at any time before or after adoption hereof by their
respective shareholders, and, in the case of an interpretation, the
actions of such Boards of Directors shall be binding; provided,
however, that no amendment, modification, or supplement shall affect
the rights of any shareholder of either of the Constituent
Corporations in any manner that is materially adverse to such
shareholder in the judgment of such respective Boards of Directors.
(e) If at any time the Surviving Corporation shall consider
or be advised that any further assignment or assurance in law or
other action is necessary or desirable to vest, perfect or confirm,
of record or otherwise, in the Surviving Corporation the title to any
property or rights of TCRI 1 acquired or to be acquired by or as a
result of the Merger, the proper officers and directors of the
respective Constituent Corporations immediately prior to the
Effective Time of the Merger shall be, and they hereby are, severally
and fully authorized to execute and deliver such deeds, assignments,
and assurances in law and to take such other actions as may be
necessary or proper in the name of TCRI 1 or TCRI 2 to vest, perfect
or confirm title to such property or rights in the Surviving
Corporation and otherwise to carry out the purposes of this Plan and
Agreement of Merger.
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(f) Notwithstanding anything to the contrary contained
herein, this Plan and Agreement of Merger cannot be altered or
amended except pursuant to an instrument in writing signed on behalf
of the parties hereto.
(g) All notices and other communications hereunder shall be
in writing and shall be deemed to have been properly given or made on
the date personally delivered or on the date mailed, by first class
registered or certified mail with postage prepaid, or telegraphed and
confirmed, if delivered, mailed or telegraphed to the respective
parties hereto at the following addresses:
If to TCRI 1: Texas Commercial Resources, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X. X. Xxxxxxx
If to TCRI 2 or the
Surviving Corporation: Texas Commercial Resources, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
(h) The captions of this Plan and Agreement of Merger are for
convenience of reference only and shall not restrict or modify the
meaning of any of the terms or provisions hereof.
(i) Whenever the context of this Plan and Agreement of Merger
requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of all words shall
include the singular and plural.
7. Approval and Effective Time of the Merger. Except as hereinafter
provided, the Merger shall become effective when all of the following
actions shall have been taken: (i) this Plan and Agreement of Merger
shall be adopted and approved by the respective shareholders of TCRI 1
and TCRI 2 in accordance with the applicable provisions of the Texas
Act, (ii) Articles of Merger (with this Plan and Agreement of Merger
attached thereto) setting forth the information required by, and
executed and verified in accordance with, the Texas Act, shall be filed
with, and accepted by, the Secretary of State of the State of Texas.
Five o'clock p.m., Houston, Texas time on the date of the last of such
filings to occur being herein referred to as the "Effective Time of the
merger".
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IN WITNESS WHEREOF, each of the Constituent Corporations-and Holding
has, pursuant to authority duly given by its Board of Directors, caused this
Plan and Agreement of Merger to be executed on its behalf by its officers in
multiple original counterparts, each of which shall constitute one and the same
instrument, all as of the date first above written.
TEXAS COMMERCIAL RESOURCES, INC.
By /s/ B. Xxxxx Xxxxxx
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TEXAS COMMERCIAL RESOURCES, INC.
By /s/ X.X. Xxxxxxx
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