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AGREEMENT AND PLAN OF MERGER
OF
INCOME OPPORTUNITY REALTY CORPORATION
(a California corporation)
AND
INCOME OPPORTUNITY REALTY INVESTORS, INC.
(a Nevada corporation)
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of March
15, 1996, is by and between Income Opportunity Realty Corporation, a California
corporation ("IORT California"), and Income Opportunity Realty Investors, Inc.,
a Nevada corporation ("IORI Nevada").
WHEREAS, IORT 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 IORT California has authority to
issue are 11,000,000 shares of which 10,000,000 shares, par value $0.01 per
share, are designated Common Stock (the "California Common Stock") and 1,000,000
shares, par value $0.01 per share, are designated Preferred Stock; and
WHEREAS, IORI Nevada is a Nevada corporation with its registered office
therein located at CT Corporation System, Xxx Xxxx Xxxxx Xxxxxx, Xxxxxx xx
Xxxxxx, Xxxx, Xxxxxx 00000; and
WHEREAS, the total number of shares of stock which IORI Nevada has
authority to issue is 11,000,000 shares, of which 10,000,000 shares, par value
$0.01 per share, are designated Common Stock ("Nevada Common Stock"), and
1,000,000 shares, par value $0.01 per share, are designated Preferred 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, IORT California and IORI 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 IORT
California with and into IORI 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:
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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 March 15, 1996 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, IORT California shall be merged with and into IORI Nevada (the
"Merger"), the separate corporate existence of IORT California shall cease, and
IORI Nevada shall continue as the surviving corporation.
2. Effective Time. On March 15, 1996 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 the
State of Nevada and the documents required by Section 1108 of the California Law
with the Secretary of State of the State of 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 the 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 IORI Nevada, as in effect immediately prior to the Effective
Time, shall remain the Articles of Incorporation of IORI Nevada as the surviving
corporation until thereafter further amended as provided by law.
5. Bylaws. The Bylaws of IORI Nevada, as in effect immediately
prior to the Effective Time, shall remain the Bylaws of IORI Nevada as the
surviving corporation until thereafter amended as provided by law.
6. Directors. The directors of IORI Nevada immediately prior to the
Effective Time shall remain the directors of IORI 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 IORI Nevada, or as otherwise provided by law.
7. Officers. The officers of IORI Nevada immediately prior to the
Effective Time shall remain the officers of IORI 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 IORI Nevada, or as otherwise provided by law.
8. Additional Actions. If, at any time after the Effective Time,
IORI 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 IORI Nevada
its right, title or interest in, to or under any of the rights, properties or
assets of IORT California
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acquired or to be acquired by IORI Nevada as a result of, or in connection with,
the Merger or otherwise to carry out this Agreement, the officers and directors
of IORI Nevada shall be authorized to execute and deliver, in the name and on
behalf of IORT California, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of IORT 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 IORI 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 IORI Nevada, IORT California or
the holder of any of the following securities
(a) each of the shares of IORT California Common Stock issued
and outstanding immediately prior to the Effective Time,
other than any shares of IORT 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 IORI Nevada Common stock, upon
surrender of the certificate representing such share;
(b) each share of IORT California Common Stock held in the
treasury of IORT 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 IORI Nevada Common Stock issued and
outstanding immediately prior to the Effective Time shall be
cancelled; and
(d) from and after the Effective Time, holders of certificates
formerly evidencing shares of IORT California Common Stock
shall have rights as stockholders of IORI Nevada (and not
IORT California) in accordance with applicable law.
10. Surrender of Shares; Stock Transfer Books.
(a) Each holder of a certificate or certificates formerly
representing any shares of IORT California Common Stock
converted in the Merger pursuant to Section 9(a) shall
surrender such certificate or certificates to IORI Nevada as
promptly as practicable. Upon surrender by such holder to
IORI Nevada of a certificate, together with such other
instruments and acknowledgments as IORI 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.
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(b) At the Effective Time, the stock transfer books of IORT
California shall be closed and there shall be no further
registration of transfers of shares of IORT California
Common Stock thereafter on the records of IORT 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 IORT California Common Stock.
11. Certain Changes.
(a) The Boards of Directors of IORI Nevada and IORT California
may amend this Agreement at any time prior to the filing of
the articles of merger with the Secretary of State of the
State of Nevada, provided that an amendment made subsequent
to the adoption of the Merger by the stockholders of IORI
Nevada and IORT 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
IORT California, (2) further alter or change any term of the
Articles of Incorporation of IORI 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 IORI Nevada or IORT
California.
(b) 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 the State of Nevada,
notwithstanding approval hereof by the stockholders of IORI
Nevada or IORT California or by the Board of Directors of
IORI Nevada or IORT California.
12. 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
IORI Nevada or its stockholders or by IORT California or its shareholders.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
14. Counterparts. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Merger to be executed by their respective officers as of the 15th day of
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March, 1996.
INCOME OPPORTUNITY REALTY
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
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Title: President
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ATTEST:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Its Secretary
INCOME OPPORTUNITY REALTY INVESTORS,
INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------
Title: President
--------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Its Secretary
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The undersigned, being the Secretary of Income Opportunity Realty
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 56.69% of the outstanding shares and (c) such vote exceeded the
majority vote required to approve the foregoing Agreement and Plan of Merger.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Secretary
Income Opportunity Realty Corporation
The undersigned, being the Secretary of Income Opportunity 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/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Secretary
Income Opportunity Realty Investors, Inc.
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