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EXHIBIT 8.2
PLAN OF MERGER
THIS PLAN OF MERGER, entered into by the undersigned corporations, and
adopted and ratified by the respective shareholders thereof, as of the 11th day
of November, 1998, by and between TOTAL BUILDING SYSTEMS, INC. ("TBS" herein), a
Texas corporation whose address for purposes of this Agreement is 0000 Xxxxx
Xxxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxx 00000-0000; and TEXAS TBS, INC. ("TBS Texas"
herein), a Texas corporation whose address for purposes of this Agreement is
0000 Xxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxx 00000-0000 (collectively, the
"Parties" and individually, each a "Party" herein); WITNESSETH that:
Whereas, Total Building Systems, Inc. is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Texas. The
total number of shares of stock which TBS is authorized to issue is 100,000
shares of a single class of common stock, with $1.00 par value, of which 10,000
shares are outstanding, and all such outstanding shares of TBS are authorized
and validly issued and nonassessable and fully paid. The shareholders of TBS are
(i) Xxxxxxx X. and Xxxx X. XxXxxxx, (ii) Xxxx Xxxxx XxXxxxx, (iii) Xxxx Xxxx
XxXxxxx, and (iv) JoyVer Investments, L.L.C.;
Whereas, TBS Texas, Inc. is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Texas. The total number of
shares of stock which TBS Texas is authorized to issue is 10,001 shares of a
single class of common stock, with $0.01 par value, of which 10,000 shares are
outstanding and issued to MegaWorld, Inc., and one (1) share is outstanding and
issued to Xxxxxxx X. XxXxxxx, and all such outstanding shares of TBS Texas are
duly authorized and validly issued and nonassessable and fully paid.
Whereas, the Parties agree that TBS Texas and TBS shall merge (the "Merger"
herein), as herein provided, with TBS Texas as the sole surviving corporation.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE PREMISES AND OTHER VALUABLE
CONSIDERATION, the receipt and adequacy of which are hereby acknowledged, and
subject to compliance with the terms and conditions set forth in that certain
Acquisition/Merger Agreement dated November 11, 1998, by and between MegaWorld,
Inc. ("MegaWorld" herein), Xxxxxxx X. XxXxxxx, and TBS, made a part hereof by
reference, the parties hereto agree to the following:
In partial consideration for the transfer of all authorized and outstanding
shares of TBS, TBS Texas shall transfer to the shareholders of TBS 14,000,000
shares of Common Stock of MegaWorld, with suitable legend, in partial
consideration of, and in exchange for, their shares of TBS stock, to be
distributed to the following shareholders of TBS in the following amounts:
(a) Xxxxxxx X. and Xxxx X. XxXxxxx 900,000 shares
(b) Xxxx Xxxxx XxXxxxx 1,400,000 shares
(c) Xxxx Xxxx XxXxxxx 1,400,000 shares
(d) JoyVer Investments, L.L.C. 5,100,000 shares
(e) Xxxx X. XxXxxxx 1,400,000 shares
In further consideration for the transfer of the TBS shares, TBS Texas
shall endorse and deliver to the shareholders of TBS a Promissory Note
("MegaWorld Promissory Note" herein) executed by MegaWorld, as Maker therein,
payable to TBS Texas, as the original Payee therein, in the original principal
amount of Eight Million and 00/100 Dollars ($8,000,000.00), with a term of two
(2) years, bearing interest at the London Inter-Bank Offered Rate ("LIBOR"
herein) plus two percent (2%) during the term thereof, payable in quarterly
installments of principal and interest as therein provided. The MegaWorld
Promissory Note and MegaWorld's performance thereunder shall be unconditionally
and absolutely guaranteed in all respects by TBS Texas, as provided in the
Acquisition/Merger Agreement. TBS Texas shall properly endorse the MegaWorld
Promissory Note and assign the MegaWorld Promissory Note to the following
persons in the following proportions:
(a) Xxxxxxx X. & Xxxx X. XxXxxxx 30%
(b) Xxxx Xxxxx XxXxxxx 10%
(c) Xxxx Xxxx XxXxxxx 10%
(d) JoyVer Investments, L.L.C. 50%
At Closing, in partial consideration for his participation in the
transactions provided for in the Acquisition / Merger Agreement, and in
particular for remaining employed under the TBS Employment Agreement and his
execution of the MegaWorld Employment, as described in the said Acquisition /
Merger Agreement, TBS Texas shall also issue and cause to be registered in the
registry of shareholders in the corporate records of TBS Texas one (1) share of
common stock in the name of Xxxxxxx X. XxXxxxx, with an option granted to
MegaWorld, Inc., to purchase said share in accordance with the terms and
conditions of the Acquisition / Merger Agreement.
The Acquisition/Merger Agreement provides for other and additional
consideration, as well as representations, warranties, covenants, security
arrangements, and other matters, all as more particularly described therein.
By execution hereof by Xxxxxxx X. XxXxxxx, individually and as and as Agent
and Attorney-in-Fact for Xxxx X. XxXxxxx, Xxxx Xxxxx XxXxxxx, Xxxx Xxxx XxXxxxx,
and JoyVer Investments, L.L.C., a Texas limited liability company, acknowledges
that all of the shareholders of TBS and all of the shareholders of TBS Texas
have approved this Plan of Merger, and by executing below they do hereby adopt,
ratify, and confirm this Plan of Merger.
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Plan of Merger
Texas TBS, Inc. and Total Business Systems, Inc.
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All parties hereto, including without limitation the shareholders named
herein, have been provided copies of the Acquisition/Merger Agreement.
The parties hereto, including without limitation the shareholders named
herein, expressly acknowledge, warrant, and represent that each has been advised
to retain separate counsel to provide advice with respect to this Agreement; and
each party hereto warrants and represents to the other that the respective
warranting party has acted upon such advice to said party's own satisfaction and
have executed this instrument and adopted the Plan of Merger freely and of that
party's own accord.
Under Article 5.06 of the Texas Business Corporation Act, all rights,
title, and interests to all real estate and other property owned by Total
Business Systems, Inc. shall, upon the filing of the Articles of Merger, be
allocated to and vested in Texas TBS, Inc., without reversion or impairment,
without further act or deed, and without any transfer or assignment having
occurred, but subject to any existing liens or other encumbrances thereon.
Under Article 5.06 of the Texas Business Corporation Act, all liabilities
and obligations of Total Business Systems, Inc. shall, upon the filing of the
Articles of Merger, be allocated to Texas TBS, Inc., and Texas TBS, Inc. shall
be the primary obligor therefor to the extent that Total Business Systems, Inc.
was the primary obligor before the filing of these articles.
IN WITNESS WHEREOF, this Plan of Merger has been executed on the 11th day
of November, 1998, by the undersigned.
TEXAS TBS, INC.:
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx, President
TOTAL BUILDING SYSTEMS, INC.:
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx, President
AGREED, CONFIRMED, RATIFIED, AND ADOPTED
/s/ Xxxxxxx X. XxXxxxx
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XXXXXXX X. XxXXXXX, Individually and as
Agent and Attorney-in-Fact for Xxxx X. XxXxxxx,
Xxxx Xxxxx XxXxxxx, Xxxx Xxxx XxXxxxx, and
JoyVer Investments, L.L.C.
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