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EXHIBIT 3.4
AGREEMENT AND PLAN OF MERGER
OF
WESPAC PROPERTY CORPORATION
(a California corporation)
AND
FIRST EQUITY PROPERTIES, INC.
(a Nevada corporation)
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
December 20, 1996, is by and between WESPAC Property Corporation, a California
corporation ("WESPAC California"), and First Equity Properties, Inc., a Nevada
corporation ("FEPI Nevada").
WHEREAS, WESPAC California is a California corporation with its resident
agent therein located at CT Corporation System, 818 West Seventh Street, Los
Angeles, California 90017; and
WHEREAS, the shares of stock that WESPAC California has authority to
issue are 45,000,000 shares, of which 40,000,000 shares, par value $0.01 per
share, are designated Common Stock (the "California Common Stock") and
5,000,000 shares, par value $0.01 per share, are designated Preferred Stock;
and
WHEREAS, FEPI Nevada is a Nevada corporation with its registered office
therein located at CT Corporation System, One East First Street, Reno, Nevada
89501; and
WHEREAS, the total number of shares of stock which FEPI Nevada has
authority to issue is 45,000,000 shares, of which 40,000,000 shares, par value
$0.01 per share, are designated Common Stock ("Nevada Common Stock"), and
5,000,000 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, WESPAC California and FEPI 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
WESPAC California with and into FEPI 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
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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 December 23, 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, WESPAC California shall be merged with and into FEPI Nevada
(the "Merger"), the separate corporate existence of WESPAC California shall
cease, and FEPI Nevada shall continue as the surviving corporation.
2. EFFECTIVE TIME. On December 23, 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 Nevada
and the documents required by Section 1108 of the California Law with the
Secretary of 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 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 FEPI Nevada, as in effect immediately prior to the
Effective Time, shall remain the Articles of Incorporation of FEPI Nevada as
the surviving corporation until thereafter further amended as provided by law.
5. BYLAWS. The Bylaws of FEPI Nevada, as in effect immediately
prior to the Effective Time, shall remain the Bylaws of FEPI Nevada as the
surviving corporation until thereafter amended as provided by law.
6. DIRECTORS. The directors of FEPI Nevada immediately prior to the
Effective Time shall remain the directors of FEPI 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 FEPI Nevada, or as otherwise provided by law.
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7. OFFICERS. The officers of FEPI Nevada immediately prior to the
Effective Time shall remain the officers of FEPI 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 FEPI Nevada, or as otherwise provided by law.
8. ADDITIONAL ACTIONS. If, at any time after the Effective Time,
FEPI 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 FEPI Nevada
its right, title or interest in, to or under any of the rights, properties or
assets of WESPAC California acquired or to be acquired by FEPI Nevada as a
result of, or in connection with, the Merger or otherwise to carry out this
Agreement, the officers and directors of FEPI Nevada shall be authorized to
execute and deliver, in the name and on behalf of WESPAC California, all such
deeds, bills of sale, assignments and assurances and to take and do, in the
name and on behalf of WESPAC 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 FEPI
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 FEPI Nevada, WESPAC California
or the holder of any of the following securities
(a) each of the shares of WESPAC California Common Stock
issued and outstanding immediately prior to the Effective Time, other
than any shares of WESPAC 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 FEPI Nevada Common stock,
upon surrender of the certificate representing such share;
(b) each share of WESPAC California Common Stock held in the
treasury of WESPAC 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 FEPI 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 WESPAC California Common Stock shall have
rights as stockholders of FEPI Nevada (and not WESPAC 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 WESPAC
California Common Stock converted in the Merger pursuant to Section 9(a) shall
surrender such certificate or certificates to FEPI Nevada as promptly as
practicable. Upon surrender by such holder to FEPI Nevada of a certificate,
together with such other instruments and acknowledgments as FEPI 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 WESPAC California shall be
closed and there shall be no further registration of transfers of shares of
WESPAC California Common Stock on the records of WESPAC 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 WESPAC California Common Stock.
11. CERTAIN CHANGES. The Boards of Directors of FEPI Nevada and
WESPAC 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
FEPI Nevada and WESPAC 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 WESPAC California, (2) further alter or change
any term of the Articles of Incorporation of FEPI 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 FEPI Nevada or WESPAC 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 FEPI Nevada or WESPAC California or by the Board of Directors
of FEPI Nevada or WESPAC California.
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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
FEPI Nevada or its stockholders or by WESPAC 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 23 day of
December, 1996.
ATTEST: WESPAC PROPERTY CORPORATION
/s/ F. TERRY SHUMATE By: /s/ KARL L. BLAHA
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F. Terry Shumate, Secretary Karl L. Blaha, President
ATTEST: FIRST EQUITY PROPERTIES, INC.
/s/ F. TERRY SHUMATE By: /s/ KARL L. BLAHA
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F. Terry Shumate, Secretary Karl L. Blaha, President
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The undersigned, being the President of WESPAC 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 84% of the outstanding shares and (c) such vote exceeded the
majority vote required to approve the foregoing Agreement and Plan of Merger.
/s/ KARL L. BLAHA
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Karl L. Blaha, President
WESPAC PROPERTY CORPORATION
The undersigned, being the President of First Equity Properties, 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/ KARL L. BLAHA
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Karl L. Blaha, President
FIRST EQUITY PROPERTIES, INC.
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