AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), is made this 24th
day of October, 2002, by and between Nor-Tex Distributing, Inc. Acquisition
Corp., a Texas corporation ("Nor-Tex"), and Southwest Mortgage Corp., a Delaware
corporation ("SMC") (the two corporate parties hereto being sometimes
collectively referred to as the "Constituent Corporations"),
W I T N E S S E T H :
WHEREAS, the proposed merger of Nor-Tex with and into SMC (the
"Merger") is being effected pursuant to Nor-Tex's Amended Joint Plan of
Reorganization (the "Plan") dated August 21, 2000 as confirmed by order of the
United States Bankruptcy Court for the Northern District of Texas, Dallas
Division on September 27, 2000 in jointly administered Case No. 00-30768-BJH-11;
WHEREAS, Nor-Tex has been authorized to effect the Merger in accordance
with the corporate laws of its state of incorporation;
WHEREAS, the Merger has been authorized by SMC in accordance with
Section 252 of the Delaware General Corporation Law;
WHEREAS, under the Plan, all of Nor-Tex's outstanding securities were
cancelled and certain of Nor-Tex's creditors are entitled to receive shares of
its common stock or the common stock of Nor-Tex's successor; and
WHEREAS, in this regard, SMC will issue shares of its common stock to
such persons and entities in accordance with the Plan after the Merger;
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge
on the terms and conditions herein provided, as follows:
ARTICLE I
Merger
1.1 Agreement to Merge. The parties to this Agreement agree to effect
the Merger herein provided for, subject to the terms and conditions set forth
herein.
1.2 Effective Time of the Merger. The Merger shall be effective upon
the acceptance for filing of (i) the Articles of Merger with the Secretary of
State of Texas and (ii) the Certificate of Merger with the Secretary of State of
Delaware. The date and time the Merger becomes effective is referred to as the
"Effective Time of the Merger."
1.3 Surviving Corporation. Upon the Effective Time of the Merger,
Nor-Tex shall be merged with and into SMC, and SMC shall be the surviving
corporation, governed by the laws of the State of Delaware (hereinafter
sometimes called the "Surviving Corporation").
1.4 Certificate of Incorporation and Bylaws. Upon the Effective Time of
the Merger, the Certificate of Incorporation and Bylaws of SMC in effect
immediately prior to the Effective Time of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation, subject always to the
right of the Surviving Corporation to amend its Certificate of Incorporation and
Bylaws in accordance with the laws of the State of Delaware and the provisions
of its Certificate of Incorporation and Bylaws.
1.5 Directors and Officers. The directors and officers of SMC in office
at the Effective Time of the Merger shall be and constitute the directors and
officers of the Surviving Corporation, each holding the same office and/or
directorship in the Surviving Corporation as they held in SMC for the terms
elected and/or until their respective successors shall be elected or appointed
and qualified or until their sooner death, resignation or removal.
1.6 Effect of the Merger. On and after the Effective Time of the
Merger, subject to the terms and conditions of this Agreement, the separate
existence of Nor-Tex shall cease, the separate existence of SMC, as the
Surviving Corporation, shall continue unaffected by the Merger, except as
expressly set forth herein, and the Surviving Corporation shall succeed, without
further action, to all the properties and assets of Nor-Tex of every kind,
nature and description and to Nor-Tex's business as a going concern. The
Surviving Corporation shall also succeed to all rights, title and interests in
any real or other property owned by Nor-Tex without reversion or impairment,
without further act or deed, and without any transfer or assignment having
occurred, but subject to any existing liens thereon. All liabilities and
obligations of Nor-Tex that were not discharged in accordance with the terms of
the Plan shall become the liabilities and obligations of the Surviving
Corporation and any proceedings pending against Nor-Tex that were not discharged
in accordance with the terms of the Plan will be continued as if the Merger had
not occurred.
1.7 Further Assurances. Nor-Tex hereby agrees that at any time, or from
time to time, as and when requested by the Surviving Corporation, or by its
successors and assigns, it will execute and deliver, or cause to be executed and
delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action and give such assurances as the Surviving Corporation,
its successors or assigns may deem necessary or desirable in order to evidence
the transfer, vesting of any property, right, privilege or franchise or to vest
or perfect in or confirm to the Surviving Corporation, its successors and
assigns, title to and possession of all the property, rights, privileges,
powers, immunities, franchises and interests referred to in this Article I and
otherwise to carry out the intent and purposes thereof.
SMC, as the Surviving Corporation, agrees that it will pay to any
dissenting stockholder of SMC, in accordance with any applicable provisions of
the laws of Delaware, such amount as such dissenting stockholder shall be
entitled to receive under applicable law as a dissenting stockholder.
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ARTICLE II
Capital Stock of the Constituent Corporations
2.1 Nor-Tex Capital Stock. By virtue of the Plan and without any action
on the part of Nor-Tex, HCC or the holders of any of the common stock of Nor-Tex
("Nor-Tex Common Stock"), each share of Nor-Tex Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger shall be
cancelled without any merger consideration therefore and shall no longer be
outstanding.
2.2 Outstanding SMC Capital Stock. Each share of the common stock,
$.0001 par value, of SMC (the "SMC Common Stock") issued and outstanding
immediately prior to the Effective Time of the Merger shall continue unchanged
and remain issued and outstanding and shall be retained by the stockholders of
SMC immediately prior to the Effective Time of the Merger as shares of the
Surviving Corporation.
2.3 Right to Receive SMC Capital Stock. Upon the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of Nor-Tex or
SMC, each share of Nor-Tex Common Stock that persons and entities are entitled
to receive in accordance with the Plan shall be converted into the right to
receive one fully paid and nonassessable share of SMC Common Stock.
2.4 Issuance of SMC Common Stock. Following the Effective Time of the
Merger, SMC shall issue shares of SMC Common Stock in accordance with the Plan.
2.5 Dissenting Shares. Each share of SMC Common Stock issued and
outstanding immediately prior to the Effective Time of Merger not voted in favor
of the Merger and the holder of which has given written notice of the exercise
of dissenter's rights as required by applicable law is herein called a
"Dissenting Share." Dissenting Shares shall not be converted into or represent
the right to receive the merger consideration pursuant to this Agreement and
shall be entitled only to such rights as are available to such holder pursuant
to applicable law unless the holder thereof shall have withdrawn or forfeited
his dissenter's rights. Each holder of Dissenting Shares shall be entitled to
receive the value of such Dissenting Shares held by him in accordance with the
provisions of applicable law. If any holder of Dissenting Shares shall
effectively withdraw or forfeit his dissenter's rights under applicable law,
such Dissenting Shares shall be converted into the right to receive the merger
consideration in accordance with this Agreement.
ARTICLE III
Termination and Amendment
3.1 Termination. This Agreement may be terminated and abandoned at any
time prior to the Effective Time of the Merger by the mutual written consent of
the Boards of Directors of Nor-Tex and SMC
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3.2 Consequences of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof,
this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, etc. Any of the terms or conditions of
this Agreement may be waived at any time by the party entitled to the benefits
thereof, and this Agreement may be modified or amended at any time to the full
extent permitted by all applicable corporate laws. Any waiver, modification or
amendment shall be effective only if reduced to writing and executed by the duly
authorized representatives of the Constituent Corporations.
ARTICLE IV
General
4.1 Expenses. The Surviving Corporation shall pay all expenses of
carrying this Agreement into effect and accomplishing the Merger herein provided
for.
4.2 Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provisions of this
Agreement.
4.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original instrument, and all such counterparts together shall constitute only
one original.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by an officer duly authorized thereunto
as of the date first above written.
NOR-TEX DISTRIBUTING, INC. ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX,
President
SOUTHWEST MORTGAGE CORP.
By: /s/ XXXX XXXXXXXXXX
-----------------------------------------
XXXX XXXXXXXXXX,
President
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