Form 19-6

See Tex. Bus. Orgs. Code §§ 10.001–.004 regarding plans of mergers.

Type A Reorganization—Agreement and Plan of Merger

Agreement and Plan of Merger (this “Agreement”) by and between [name of entity A], a Texas [type of entity] (“[abbreviated name A]”), and [name of entity B], a [name of state of organization] [type of entity] (“[abbreviated name B]”).

WHEREAS, [abbreviated name A] is an organization duly organized and validly exist­ing under the laws of the state of Texas, having authorized [type of ownership interest, e.g., stock] consisting of [number] [type of ownership interest], all of which are entitled to vote and of which [number] [type of ownership interest] are issued and outstanding; and

WHEREAS, [abbreviated name B] is an organization duly organized and validly exist­ing under the laws of the [name of state of organization], having authorized [type of ownership interest] consisting of [number] [type of ownership interest], all of which are entitled to vote and of which [number] [type of ownership interest] are issued and outstanding; and

WHEREAS, the [governing authorities] of [abbreviated name A] and [abbreviated name B] deem it advisable that [name of merging organization] merge with and into [name of surviving organization] on the terms and subject to the conditions set forth herein and in accor­dance with the laws of the state of Texas (the “Merger”) and that the [type of ownership inter­est] of [name of merging organization] be canceled upon consummation of the Merger as set forth herein; and

WHEREAS, the [governing authorities] of [name of surviving organization] and [name of merging organization] have duly approved and adopted the provisions of this Agreement as the plan of merger required by section 10.001 of the Texas Business Organizations Code (the “BOC”) [include if applicable: and the provisions of the statute to which the non-BOC entity is subject].

THEREFORE, in consideration of the mutual promises set forth in this Agreement, the parties agree as follows:

Section 1
Effect of Merger; Manner and Bases of Converting
and Canceling [type of ownership interest]

A.At the Effective Time (as defined in section 2 below), [name of merging organization] will be merged into [name of surviving organization], the separate corporate existence of [name of merging organization] (except as may be continued by operation of law) will cease, and [name of surviving organization] will continue as the surviving organization, all with the effects provided by applicable law.

B.[Describe the name and organizational form of each new organization that is to be cre­ated by the plan of merger.]

C.At the Effective Time, each [type of ownership interest] of [name of merging organiza­tion] issued and outstanding immediately before the Effective Time will, by virtue of the Merger and without any action by [name of merging organization] or any other person, be can­celed and [describe manner and basis of converting ownership interests of the merging entity into (1) ownership interests, membership interests, obligations, rights to purchase securities, or other securities of one or more of the surviving or new organizations; (2) cash; (3) other property including ownership interests, membership interests, obligations, rights to purchase securities, or other securities of any other person or entity; or (4) any combination of (1)–(3)].

Section 2
Effective Time

The Merger becomes effective as of [time] [a.m./p.m.] central time, [date] (the “Effec­tive Time”).

The Effective Time is when the secretary of state of Texas accepts the certificate of merger or such other later date as the parties specify (the “Effective Time”).

Section 3
Organizational Documents

A.The certificate of formation of each new domestic nonfiling entity created by the Merger is attached as Exhibit A.

B.The governing documents of each new domestic nonfiling entity created by the Merger is attached as Exhibit [A/B].

C.The governing documents of each non-BOC organization that is to survive the merger or be created by the merger and that is not organized under the laws of any state or the United States, or is not required to file with the appropriate governmental authority the certificate of formation under which the entity is organized, is attached as Exhibit [A/B/C].

D.[Describe the manner and basis of allocating property, the name of each surviving or new organization, and the manner and basis of allocating liability in accordance with section 10.003 of the Texas Business Organizations Code.]

E.[Insert amendments to the governing documents of any surviving organization.]

F.[Insert provisions related to an interest exchange.]

G.[Insert any other provision not required by chapter 10 of the Texas Business Organiza­tions Code.]

Section 4
Miscellaneous

A.Binding Effect of Agreement. Nothing in this Agreement, express or implied, is intended to confer on any party, other than the parties hereto and their respective permitted assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, and no person who is not a party to this Agreement may rely on the terms except as otherwise set out. This Agreement (1) constitutes the entire agreement between the parties relating to the subject matter hereof and (2) supersedes all previous understandings and agreements between the parties relating to the subject matter hereof, both oral and written. The terms and condi­tions of this Agreement will be binding on and inure to the benefit of the respective successors and permitted assigns of the parties hereto.

B.Assignment. No party to this Agreement may assign its rights or delegate its obliga­tions hereunder without the prior written consent of each party. Any such attempted assign­ment will be void ab initio. Subject to the preceding sentences, this Agreement will be binding on and inure to the benefit of the parties and their respective successors and assigns.

C.Amendment of Agreement. This Agreement may be amended or modified only by written instrument duly executed by each of the parties hereto.

D.Applicable Law. This Agreement is made pursuant to, will be construed under, will be enforced by, and will be conclusively deemed for all purposes to have been executed and delivered under the laws of the state of Texas without reference to conflict of laws.

E.Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which will constitute one instrument.

F.Severability. If any provision of this Agreement is held to be illegal, invalid, or unen­forceable under present or future laws effective during the term hereof, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected thereby, and in lieu of the illegal, invalid, or unenforceable provision, there will be added automati­cally as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be legal, valid, and enforceable.

G.Notices. All notices, communications, and deliveries made under this Agreement will be made in writing signed by or on behalf of the party, will specify the section of the Agree­ment under which it is given or made, and will be delivered personally, by facsimile transmis­sion, by registered or certified mail (return receipt requested), or by any courier service, with postage or other fees prepaid, as follows:

If to [name]:
[Address]
[Fax no.]
Attention: [name]

Any such notice, communication, or delivery may also be made to any other address or person designated in writing by the party. Addresses may be changed from time to time by written notice to the other party. Any notice, communication, or delivery will be deemed given or made (1) on the date of delivery if delivered in person or by courier service, (2) on transmis­sion by facsimile if receipt is confirmed by telephone, or (3) on the fifth business day after it is mailed by registered or certified mail.

H.Waiver. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and executed by all the parties hereto. Any waiver by any party hereto of a breach or failure to perform will not constitute a waiver of any subse­quent breach or failure.

I.Further Assurances. The parties agree to take further actions and execute and deliver other documents, certificates, agreements, and other instruments as may be reasonably neces­sary or desirable to implement transactions contemplated by this Agreement.

J.Section Headings. The headings contained in this Agreement are for reference pur­poses only and will not affect in any way the meaning or interpretation of this Agreement.

K.Gender and Number of Words. When the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the number of all words includes the singular and the plural.

   
[Name of surviving organization]

   
[Name of officer], [title]

   
[Name of merging organization]

   
[Name of officer], [title]