Exhibit 2
AGREEMENT AND PLAN OF MERGER
of
WIZZARD SOFTWARE CORPORATION
(a Delaware corporation and the 96%-owned subsidiary corporation)
with and into
WIZZARD SOFTWARE CORPORATION
(a Colorado corporation and the parent corporation)
THIS AGREEMENT AND PLAN OF MERGER entered into this ____ day of
________, 2004, by and between WIZZARD SOFTWARE CORPORATION, a Colorado
corporation ("Wizzard Colorado"), and WIZZARD SOFTWARE CORPORATION, a Delaware
corporation and 96%-owned subsidiary of the former ("Wizzard Delaware").
WITNESSETH
WHEREAS, Wizzard Delaware is a corporation which is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has, and will have as of the Effective
Time (hereinafter defined), authorized capital stock consisting of 20,000,000
shares of common stock of a par value of one mill ($0.001) per share, of which
13,992,012 shares of common stock are issued and outstanding;
WHEREAS, Wizzard Colorado is a corporation which is duly
organized, validly existing and in good standing under of laws of the
jurisdiction of its incorporation with the same directors and officers as that
of Wizzard Delaware, and it has, and will have, as of the Effective Time
(hereinafter defined), authorized capital stock consisting of 110,000,000
shares, divided into two classes: 100,000,000 shares of common stock of a par
value of one mill ($0.001) per share; and 10,000,000 shares of preferred stock
of a par value of one mill ($0.001) per share, of which 25,564,022 shares of
common stock and no shares of preferred stock are issued and outstanding;
WHEREAS, on February 7, 2001, the parties completed a Plan of
Reorganization and Stock Exchange Agreement whereby Wizzard Delaware became a
96%-owned subsidiary of Wizzard Colorado (the "Plan"), and Wizzard Colorado is
the holder of 13,404,836 of the 13,992,012 outstanding shares of Wizzard
Delaware;
WHEREAS, the parties to the Plan contemplated that Wizzard
Colorado would promptly merge Wizzard Delaware into itself and issue 587,176
shares of its common stock to the remaining Wizzard Delaware stockholders in
exchange for their Wizzard Delaware shares;
WHEREAS, the parties believe that such a merger would be
considered a tax-free exchange under 368(a)(1)(A) of the Internal Revenue
Code, as amended;
WHEREAS, the laws of the State of Delaware, specifically, 253(a)
of the Delaware General Corporation Law, allow a domestic subsidiary
corporation to merge with and into a foreign parent corporation;
WHEREAS, the laws of the State of Colorado, specifically, 7-111-
104 of the Colorado Revised Statutes, allow a foreign subsidiary corporation
to merge with and into a domestic parent corporation;
WHEREAS, the laws of the State of Delaware require approval of
this type of merger transaction by a majority of the stockholders of Wizzard
Delaware and whereas Delaware law further requires giving dissenters' rights
of appraisal in this instance;
WHEREAS, the laws of the State of Colorado require approval of
this type of merger transaction by the Board of Directors of Wizzard Colorado;
WHEREAS, the Boards of Directors of Wizzard Delaware and Wizzard
Colorado have adopted resolutions declaring advisable the proposed merger of
Wizzard Delaware with and into Wizzard Colorado upon the terms and conditions
hereinafter set forth; and
WHEREAS the Boards of Directors of both Wizzard Delaware and
Wizzard Colorado have, by resolution, unanimously adopted and approved this
Agreement and Plan of Merger and directed that it be submitted to each
corporation's respective shareholders, all in accordance with the applicable
laws of the State of Delaware as well as the State of Colorado;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained and pursuant to applicable statutes,
Wizzard Delaware and Wizzard Colorado hereby agree that Wizzard Delaware shall
be merged with and into Wizzard Colorado and Wizzard Colorado shall be and
become the "Surviving Corporation" in the manner herein provided, more
specifically, as follows:
ARTICLE I
THE MERGER
1.1 Merger. Subject to the conditions hereinafter set forth, at the
Effective Time, as defined in Section 4.3 hereof, Wizzard Delaware shall be
merged with and into Wizzard Colorado, which is the holder of 96% of the
outstanding voting securities of the former. Wizzard Colorado shall be the
surviving corporation. The corporate existence of Wizzard Colorado, with all
its purposes, powers, and objects shall continue unaffected and unimpaired by
the merger, and Wizzard Colorado, as it shall be constituted after the
Effective Time, will be and is herein called the "Surviving Corporation." The
separate corporate existence of Wizzard Delaware shall cease at the Effective
Time, and thereupon Wizzard Delaware and Wizzard Colorado shall be a single
corporation which shall be Wizzard Colorado, and which shall be and continue
as a Colorado corporation subject to and governed by the laws of the State of
Colorado.
1.2 Rights and Property of Surviving Corporation. From and after the
Effective Time, Wizzard Colorado, as the Surviving Corporation, shall continue
to possess all of the rights, privileges, powers, franchises and licenses and
all of the interests in and to every type of property (real, personal and
mixed) and choses in action possessed by Wizzard Colorado immediately prior to
the Effective Time and without further act or deed shall succeed to and
possess all of the rights, privileges, powers, franchises and licenses and all
of the interests in and to every type of property (real, personal and mixed)
and choses in action possessed by Wizzard Delaware immediately prior to the
Effective Time, in the same manner and to the same extent as if such rights,
privileges, powers, franchises, licenses and interests were held or enjoyed by
Wizzard Colorado immediately prior to the Effective Time.
1.3 Liabilities and Obligations of Surviving Corporation. From and
after the Effective Time, the Surviving Corporation shall thereupon and
thereafter possess all the rights, privileges, powers and franchises as well
of a public as of a private nature, and be subject to all of the restrictions,
disabilities and duties of Wizzard Delaware; and all the rights, privileges,
powers and franchises of Wizzard Delaware, and all property, real, personal
and mixed, and all debts due to Wizzard Delaware on whatever account, as well
for stock subscriptions as all other things in action or belonging to Wizzard
Delaware shall belong to and become vested in the Surviving Corporation; and
all property, rights, privileges, powers and franchises, and all and every
other interest shall become thereafter the property of the Surviving
Corporation as they were of Wizzard Delaware, and the title to any real estate
or other property vested by deed or otherwise in Wizzard Delaware shall not
revert or be in any way impaired by reason of this Plan; but all rights of
creditors and all liens upon any property of Wizzard Delaware shall be
preserved unimpaired, and all debts, liabilities and duties of Wizzard
Delaware shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it. Specifically, but not by way of
limitation, any action or proceeding whether civil, criminal or
administrative, pending by or against Wizzard Delaware, shall be prosecuted as
if this Plan had not taken place, or the Surviving Corporation may be
substituted in any such action or proceeding.
From and after the Effective Time, Wizzard Colorado, as the Surviving
Corporation, shall continue to be subject to all of the debts, liabilities,
restrictions, disabilities and duties to which Wizzard Delaware was subject
immediately prior to the Effective Time and Wizzard Colorado shall otherwise
be and become subject to all of the debts, liabilities, restrictions,
disabilities and duties to which Wizzard Delaware was subject immediately
prior to the Effective Time in the same manner as if Wizzard Colorado had
itself incurred them. All rights of creditors and liens or encumbrances of
any kind upon any of the property of Wizzard Delaware shall be preserved
unimpaired and the same shall inhere in and become those of Wizzard Colorado.
The effect of the merger shall be that effect provided for in 259 of the
Delaware General Corporation Law titled Status, rights, liabilities, of
constituent and surviving or resulting corporations following merger or
consolidation, and 0-000-000 of the Colorado Revised Statutes titled Effect
of merger or share exchange.
All corporate acts, plans, policies, contracts, approvals and
authorizations of Wizzard Delaware and its stockholders, board of directors,
committees, elected or appointed by the Board of Directors, officers and
agents, which were valid and effective immediately prior to the Effective Time
shall be taken for all purposes as the acts, plans, policies, contracts,
approvals and authorizations of the Surviving Corporation and shall be as
effective and binding thereon as the same were with respect to Wizzard
Delaware.
1.4 Books and Records. The assets, liabilities, reserves and accounts
of Wizzard Delaware shall be recorded on the books of the Surviving
Corporation at the amounts at which they, respectively, shall then be carried
on the books of Wizzard Delaware, subject to such adjustments or eliminations
of intercompany items as may be appropriate in giving effect to the Plan.
1.5 Rights of Stockholders. Stockholders of both corporations shall
be afforded all rights, privileges and obligations contained within the
Delaware General Corporation Law and the Colorado Revised Statutes as such
laws relate to a merger between a parent corporation and its subsidiary and
when the subsidiary is to become the Survivor.
1.6 Further Actions or Assurances. If at any time after the
Effective Time, the Surviving Corporation shall consider or be advised that
any further assignment, assurances in law or any other things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation the title to any property or right of Wizzard Delaware
acquired or to be acquired by reason of, or as a result of, the merger,
Wizzard Delaware and its proper officers and directors will execute and
deliver all such proper deeds, assignments and assurances required by law and
do all things necessary and proper to vest, perfect or confirm title to such
property or right in the Surviving Corporation and otherwise to carry out the
intent and purposes of this Agreement, and the proper officers and directors
of the Surviving Corporation are and will be fully authorized in the name of
Wizzard Delaware or otherwise to take any and all such actions.
ARTICLE II
ARTICLES OF INCORPORATION; BYLAWS;
BOARD OF DIRECTORS; OFFICERS
2.1 Articles of Incorporation. The Articles of Incorporation of
Wizzard Colorado as in effect at the Effective Time shall become the Articles
of Incorporation of the Surviving Corporation until the same shall be amended
as provided by law.
2.2 Bylaws. The Bylaws of Wizzard Colorado as in effect at the
Effective Time shall become the Bylaws of the Surviving Corporation until the
same shall thereafter be altered, amended or repealed as provided by law.
2.3 Directors and Officers. From and after the Effective Time, the
directors and officers of Wizzard Colorado shall continue to serve as the
directors and officers of the Surviving Corporation, each to serve until his
or her respective successor shall have been duly elected and qualified.
ARTICLE III
CONVERSION OF SHARES
3.1 Conversion of Shares. With the exception of the 13,404,836 shares
held by Wizzard Colorado, each one (1) share of Common Stock of Wizzard
Delaware outstanding immediately prior to the Effective Time shall thereupon
automatically and without any further act on the part of the holders thereof,
be converted and convertible, at the Effective Time, into and become one (1)
share of Wizzard Colorado Common Stock. Accordingly, at and upon the
Effective Time, with the exception of Wizzard Colorado, every stockholder of
Wizzard Delaware shall be entitled to one (1) share of Wizzard Colorado for
each one (1) share of Wizzard Delaware he or she owns, the result of which
shall be, upon the Effective Time, that Wizzard Colorado shall have 26,151,198
shares of common capital shares issued and outstanding, taking into account
the 25,564,022 shares issued and outstanding immediately prior to the closing
of the Plan and the 587,176 shares to be issued to the Wizzard Delaware
stockholders as provided herein.
3.2 Exchange of Certificates. After the Effective Time, all holders
of shares of Wizzard Delaware Common Stock shall promptly surrender them to
Wizzard Colorado's duly appointed transfer agent, Interwest Transfer Company,
Inc., 0000 Xxxx Xxxxxx-Xxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, in such a manner
as Wizzard Colorado shall legally require, with all such shares to be canceled
on the books and records of Wizzard Delaware. Those shareholders submitting
shares for transfer and registration shall be required to pay all charges
therefor on his, her or its own. Upon receipt of said share certificate(s),
Wizzard Colorado's transfer agent shall issue, in exchange therefor, a
certificate or certificates for shares of Wizzard Colorado Common Stock
representing the number of shares of such stock to which such holder shall be
entitled as hereinabove set forth.
3.3 Registration of Shares. Immediately following the Effective Time,
the Company shall file with the Securities and Exchange Commission a
Registration Statement on Form S-4 to register all shares of Wizzard Colorado
Common Stock to be issued hereunder.
ARTICLE IV
CONSUMMATION OF MERGER
4.1 Filing of Merger Documents. Subject to the terms and conditions
hereof, as soon as practicable, Wizzard Colorado and Wizzard Delaware shall
execute and file all such certificates and other documents relating to the
merger as are required to be filed under the laws of the States of Delaware
and Colorado to effectuate the merger, and shall promptly take all such other
action necessary to fully and completely effectuate the merger.
4.2 Required Vote. The vote for approval of the principal terms of
the merger contemplated by this Agreement shall be by vote of the Board of
Directors of Wizzard Colorado as the holder of 96% of the issued and
outstanding shares of common stock of Wizzard Delaware. Approval of the
stockholders of Wizzard Colorado is not required under Colorado law.
Stockholders of Wizzard Delaware shall be given such written notice as
required by law.
4.3 Effective Time. As contemplated under both Delaware and Colorado
law, the merger shall become effective 10 days after the date that Wizzard
Colorado mails a copy or summary of the Plan to each Wizzard Delaware
stockholder who does not waive such mailing requirement.
4.4 Termination. Any party may terminate this Agreement at any time
prior to the filing of the Articles of Merger with the Secretary of State of
the State of Colorado, notwithstanding prior approval by the shareholders of
either party.
4.5 Modification of Amendment of Agreement. At any time prior to the
Effective Time, the parties hereto may, by written agreement approved by their
respective Boards of Directors, amend, modify or waive compliance with any of
the conditions, covenants or provisions of this Agreement.
4.6 Principal Offices After Consummation of the Merger. An office of
the Surviving Corporation shall be maintained at the following: 0000 Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, phone number 412-621-
0902, fax number 000-000-0000.
4.7 Dissenter's Rights of Appraisal. The Surviving Corporation shall
provide notice of dissenter's rights to the Wizzard Delaware stockholders in
accordance with the requirements of the Delaware General Corporation Law
ARTICLE V
MISCELLANEOUS
5.1 Execution in Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original, but all of which collectively shall constitute but one and the same
instrument.
5.2 Headings. The headings of the Articles and Sections of this
Agreement are inserted for convenience of reference only and are not intended
and shall not be considered for any purpose in construing this Agreement.
5.3 Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws
of the States of Delaware and Colorado.
5.4 Integration. This Agreement and Plan constitutes the complete
agreement and understanding between the parties hereto and supersedes any
prior or contemporaneous understandings of any kind or nature and may only be
modified in a writing duly subscribed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WIZZARD SOFTWARE CORPORATION,
a Delaware corporation
By/s/Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx, President
Attest:
/s/Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, Secretary
WIZZARD SOFTWARE CORPORATION,
a Colorado corporation
By/s/Xxxxxxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxxxx, President
Attest:
/s/Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, Secretary
