EXHIBIT 2.1
-----------
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "MERGER AGREEMENT"), is entered
into as of December 18, 2006, between Cognitronics Corporation, a New York
corporation ("COGNITRONICS"), and ThinkEngine Networks, Inc., a Delaware
corporation and wholly-owned subsidiary of Cognitronics ("SUBSIDIARY").
RECITALS:
WHEREAS, Cognitronics is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York with authorized
capital stock consisting of 20,000,000 shares of common stock, $0.20 par value
per share (the "NEW YORK COMMON STOCK");
WHEREAS, Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with authorized
capital stock consisting of 20,000,000 shares of common stock, $0.001 par value
per share (the "DELAWARE COMMON STOCK");
WHEREAS, the Board of Directors of Cognitronics has determined that,
for purposes of effecting the reincorporation of Cognitronics in the State of
Delaware, it is advisable and in the best interests of Cognitronics and the
holders of shares of New York Common Stock (the "COGNITRONICS SHAREHOLDERS") for
Cognitronics to merge with and into Subsidiary upon the terms and conditions set
forth herein;
WHEREAS, the respective Boards of Directors of Cognitronics and
Subsidiary have authorized and approved the merger of Cognitronics with and into
Subsidiary subject to and upon the terms and conditions of this Merger
Agreement, and have approved the terms of this Merger Agreement and directed
that it be executed by the undersigned officers and submitted to the
Cognitronics Shareholders and the stockholder of the Subsidiary for their
approval; and
WHEREAS, it is the intention of Cognitronics and Subsidiary that the
merger be a tax-free reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended (the "CODE").
NOW, THEREFORE, for and in consideration of the mutual premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
THE MERGER
Section 1.1. Merger of Cognitronics into Subsidiary. At the Effective
Time (as defined in Section 2.1), Cognitronics shall merge with and into
Subsidiary in accordance with the New York Business Corporation Law (the "NEW
YORK LAW") and the General Corporation Law of the State of Delaware (the
"DELAWARE LAW").
The separate existence of Cognitronics shall thereupon cease and
Subsidiary shall be the surviving corporation (hereinafter referred to as the
"SURVIVING CORPORATION") and shall possess all the rights, privileges, powers
and franchises of a public as well as of a private nature, and be subject to all
the restrictions, disabilities and duties of each of Cognitronics and Subsidiary
(together referred to as the "CONSTITUENT CORPORATIONS"); and all the rights,
privileges, powers and franchises of each of the Constituent Corporations, and
all property, real, personal and mixed, and all debts due to either of the
Constituent Corporations, on whatever account, as well as for stock
subscriptions and all other things in action or belonging to each of the
Constituent Corporations, shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they had been of the several and respective Constituent
Corporations, and the title to any real estate vested by deed or otherwise,
under the laws of the State of Delaware, in either of such Constituent
Corporations shall not revert or be in any way impaired by reason of the
Delaware Law; but all rights of creditors and all liens upon any property of any
of the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thereafter attach to the Surviving Corporation and may be enforced against it to
the same extent as if those debts, liabilities and duties had been incurred or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of Cognitronics, the Cognitronics Shareholders, the
Board of Directors of Cognitronics and committees thereof, and the officers and
agents thereof which were valid and effective immediately prior to the Effective
Time, shall be taken for all purposes as acts, plans, policies, agreements,
arrangements, approvals and authorizations of the Surviving Corporation and
shall be as effective and binding thereon as the same were with respect to
Cognitronics. The employees and agents of Cognitronics shall become the
employees and agents of Subsidiary and continue to be entitled to the same
rights and benefits which they enjoyed as employees and agents of Cognitronics.
The requirements of any plans or agreements of Cognitronics involving the
issuance or purchase by Cognitronics of certain shares of its capital stock
shall be satisfied by the issuance or purchase of a like number of shares of the
Surviving Corporation. The subsidiaries of Cognitronics shall become the
subsidiaries of the Surviving Corporation.
ARTICLE II.
EFFECTIVE TIME; EFFECT OF MERGER
Section 2.1. Effective Time. The Merger shall become effective on the
date the Certificate of Merger is filed by with the Department of State of the
State of New York, or the date a Certificate of Ownership and Merger is filed
with the Secretary of State of the State of Delaware, whichever filing occurs
last (the "EFFECTIVE Time").
Section 2.2. Effects of the Merger. At the Effective Time, the Merger
shall have the effects specified in the New York Law, the Delaware Law and this
Merger Agreement.
Section 2.3. Certificate of Incorporation and Bylaws. At the Effective
Time, the Certificate of Incorporation and the Bylaws of Subsidiary, as in
effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation and Bylaws of the
Surviving Corporation.
Section 2.4. Directors and Officers. At the Effective Time, the
directors and officers of Cognitronics in office at the Effective Time shall
retain their positions as the directors and officers, respectively, of the
Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the Certificate of Incorporation and
Bylaws of the Surviving Corporation and the Delaware law, until his or her
successor is duly elected or appointed and shall qualify, or until his or her
earlier death, resignation or removal.
Section 2.5. Change of Name. At the Effective Time, ThinkEngine
Networks, Inc., the name set forth in Paragraph First of the Subsidiary's
Certificate of Incorporation, shall be the name of the Surviving Corporation.
ARTICLE III.
CONVERSION AND EXCHANGE OF STOCK
Section 3.1. Conversion.
(a) Shares. At the Effective Time, each share of New York Common Stock issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
merger and without any action on the part of the holder thereof, be converted
into and become one share of Delaware Common Stock.
(b) Cancellation. At the Effective Time, each share of Delaware Common Stock
issued and outstanding immediately prior to the Effective Time and held by
Cognitronics shall be canceled without any consideration being issued or paid
therefor.
(c) Stock Awards. At the Effective Time, each stock option, restricted stock
award or other stock appreciation right (each, a "STOCK AWARD") of Cognitronics
then outstanding, whether vested or unvested, exercisable or unexercisable,
without any action on the part of the holder thereof shall be converted into a
Stock Award of the Surviving Corporation with respect to an equivalent number of
shares of Delaware Common Stock.
Section 3.2. Exchange of Certificates. At the Effective Time, stock
certificates representing New York Common Stock will automatically represent an
equal number of shares of Delaware Common Stock. At any time after the Effective
Time, the holders of Delaware Common Stock represented by certificates issued
prior to the Effective Time, will be entitled, upon request, and surrender of
such certificates, to the Surviving Corporation, to receive in exchange therefor
a new stock certificate evidencing ownership of the same number of shares of
Delaware Common Stock. If any new certificate is to be issued in a name other
than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of the issuance thereof that the certificate
or other writing so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange shall pay
to the Surviving Corporation or its transfer agent any transfer or other taxes
required by reason of the issuance of a certificate representing shares of
Delaware Common Stock in any name other
than that of the registered holder of the certificate surrendered, or otherwise
required, or shall establish to the satisfaction of the transfer agent that such
tax has been paid or is not payable.
ARTICLE IV.
MISCELLANEOUS
Section 4.1. Amendment. This Merger Agreement may be amended, modified
or supplemented, in whole or in part, at any time prior to the Effective Time
with the mutual consent of the respective Boards of Directors of Cognitronics
and Subsidiary to the full extent permitted under applicable law.
Section 4.2. Notices. All communication hereunder shall be in writing
and, sent by mail, or by facsimile as set forth below:
If to Cognitronics to:
Cognitronics Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to Subsidiary to:
ThinkEngine Networks, Inc.
c/o Cognitronics Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Section 4.3. Abandonment; Postponement. At any time prior to the
Effective Time, this Merger Agreement may be terminated and the Merger may be
abandoned by the respective Boards of Directors of Cognitronics or Subsidiary,
or the consummation of the Merger may be postponed for a reasonable period of
time, without any action of the Cognitronics Shareholders or stockholders of
Subsidiary, notwithstanding the approval of this Merger Agreement by the
Cognitronics Shareholders or Board of Directors of either Cognitronics or
Subsidiary.
Section 4.4. Further Assurances. If at any time after the Effective
Time of the Merger, the Surviving Corporation shall consider that any
assignments, transfers, deeds or other assurances in law are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to any property or rights of Cognitronics, Cognitronics and
its directors and officers holding office at the Effective Time shall execute
and deliver such documents and do all things necessary and proper to vest,
perfect or confirm title to such property or rights in the Surviving
Corporation, and the officers and directors of the Surviving Corporation are
fully authorized in the name of Cognitronics or otherwise to take any and all
such action.
Section 4.5. Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument. In the
event that any signature is delivered by facsimile or other means of electronic
image transmission, such signature shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the
same force and effect as if such facsimile or electronically transmitted
signature page were an original thereof.
Section 4.6. Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws of such state.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the parties to this Merger Agreement have executed this
Merger Agreement on and as of the day first written above.
COGNITRONICS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
THINKENGINE NETWORKS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
