Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Merger Plan") is entered into on
this 7th day of November, 1997, pursuant to Section 16-10a-1104 of the Utah
Revised Business Corporation Act, as amended (the "URBCA"), and Section 253 of
the Delaware General Corporation Law, as amended (the "DGCL"), by and between
Applied Voice Recognition, Inc., a Utah corporation ("AVRI-UT"), and Applied
Voice Recognition, Inc., a Delaware corporation ("AVRI-DE"). AVRI-UT and AVRI-
DE are collectively referred to herein as the "Constituent Corporations."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, AVRI-UT is a corporation duly organized and existing under the
laws of the State of Utah, and has authorized capital stock consisting of
50,000,000 shares of common stock, par value $.001 per share ("UT-Common
stock"), of which 13,119,800 shares of common stock are issued and outstanding,
and 2,000,000 shares of preferred stock, par value $.10 per share, of which
312,500 shares are designated as Series A Preferred Stock ("UT-Series A
Preferred Stock") and are issued and outstanding;
WHEREAS, AVRI-DE is a corporation duly organized and existing under the
laws of the State of Delaware, and has authorized capital stock consisting of
50,000,000 shares of common stock, par value $.001 per share ("DE-Common
Stock"), of which 1,000 shares of common stock are issued and outstanding, and
2,000,000 shares of preferred stock, par value $.10 per share, of which 312,500
shares are designated as Series A Preferred Stock ("DE-Series A Preferred
Stock") all of which are issued and outstanding;
WHEREAS, the respective Boards of Directors of the Constituent Corporations
deem it advisable and in the best interests of the Constituent Corporations that
AVRI-UT be merged with and into AVRI-DE, with AVRI-DE being the surviving
corporation (the "Merger"), as authorized by the laws of the State of Utah and
the State of Delaware, under and pursuant to the terms and conditions
hereinafter set forth, and the Board of Directors of each of the Constituent
Corporations has duly approved this Merger Plan and recommended its approval to
the stockholders of each of the Constituent Corporations; and
WHEREAS, for federal income tax purposes, it is intended that the Merger
qualify as a reorganization within the meaning of Sections 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual and dependent covenants and
agreements herein contained, and for the purpose of setting forth the terms and
conditions of the Merger, the mode of carrying the same into effect, and such
other details and provisions as are deemed necessary or desirable, the parties
hereto have agreed and do hereby agree, subject to the approval of this Merger
Plan by the requisite consent of the Stockholders of each of the Constituent
Corporations, and subject to the conditions hereinafter set forth, as follows:
1. THE MERGER. At the Effective Time (as defined in Section 7 below) of
the Merger, AVRI-UT shall be merged with and into AVRI-DE, with AVRI-DE being
the surviving corporation, which shall not be a new corporation, but which shall
continue its corporate existence as a Delaware corporation to be governed by the
laws of the State of Delaware, which shall continue to be named "Applied Voice
Recognition, Inc." and which shall maintain a registered office in the State of
Delaware at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
2. TERMS AND CONDITIONS OF MERGER. At the Effective Time of the Merger:
2.1 THE SURVIVING CORPORATION. The Constituent Corporations shall be
a single corporation, which shall be AVRI-DE, the corporation designated
herein as the surviving corporation;
2.2 EXISTENCE OF AVRI-UT. The separate corporate existence of AVRI-
UT shall cease;
2.3 RIGHTS OF CONSTITUENT CORPORATIONS. AVRI-DE shall thereupon and
thereafter 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 Constituent Corporation; and
all rights, privileges, powers and franchises of each Constituent
Corporation, and all property, real, personal and mixed, and all debts due
to any Constituent Corporation on whatever account, as well as for stock
subscriptions, and all other things in action or belonging to each
Constituent Corporation shall be vested in AVRI-DE; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of AVRI-DE as they were of
the respective Constituent Corporations, and the title to any real estate
vested by deed or otherwise in the Constituent Corporations shall not
revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of the Constituent Corporations
shall be preserved unimpaired, and all debts, liabilities and duties of the
respective Constituent Corporation shall thenceforth attach to AVRI-DE and
may be enforced against AVRI-DE 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 either
Constituent Corporation shall be prosecuted as if the Merger had not taken
place, or AVRI-DE may be substituted in such action or proceeding;
2.4 ACTS OF CONSTITUENT CORPORATIONS PRIOR TO EFFECTIVE TIME. All
corporate acts, plans, policies, contracts, approvals and authorizations of
the Constituent Corporations and their stockholders, Boards of Directors,
committees elected or appointed by their Boards of Directors, officers and
agents, which were valid and effective immediately prior to the Effective
Time of the Merger, shall be taken for all purposes as the acts, plans,
policies, contracts, approval and authorizations of AVRI-DE and shall be
effective and binding thereon as the same were with respect to the
Constituent Corporations; and
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2.5 ASSETS OF THE CONSTITUENT CORPORATIONS. The assets, liabilities,
reserves and accounts of each Constituent Corporation shall be recorded on
the books of AVRI-DE, the surviving corporation, in accordance with
generally accepted accounting principles, and the capital surplus and
retained earnings of AVRI-DE, the surviving corporation, shall be
determined in accordance with generally accepted accounting principles, by
the Board of Directors of AVRI-DE.
3. CANCELLATION OF DE-COMMON STOCK. At the Effective Time, each share of
DE-Common Stock") then issued and outstanding shall, without any action on the
part of the stockholder thereof, be cancelled and cease to exist, and, at or
before the Effective Time, the stockholder of the then issued and outstanding
shares of DE-Common Stock shall surrender each outstanding certificate or
certificates theretofore representing shares of DE-Common Stock.
4. CONVERSION OF UT-COMMON STOCK. At the Effective Time of the Merger,
each share of UT-Common Stock issued and outstanding immediately preceding the
Effective Time of the Merger shall, without any action on the part of the
holders thereof, be converted into an identical number of shares of DE-Common
Stock.
5. CONVERSION OF UT-SERIES A PREFERRED STOCK. At the Effective Time of
the Merger, each share of UT-Series A Preferred Stock issued and outstanding
immediately preceding the Effective Time of the Merger shall, without any action
on the part of the holders thereof, be converted into an identical number of
shares of DE-Series A Preferred Stock.
6. THE SURVIVING CORPORATION.
6.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of AVRI-DE as existing and constituted immediately prior to the Effective
Time of the Merger shall, at and after the Effective Time of the Merger, be
and constitute the Certificate of Incorporation of AVRI-DE, as the
corporation surviving the Merger.
6.2 BYLAWS. The Bylaws of AVRI-DE as existing and constituted
immediately prior to the Effective Time of the Merger shall, at and after
the Effective Time of the Merger, be and constitute the Bylaws of AVRI-DE,
as the corporation surviving the Merger, until amended in the manner
provided by law.
6.3 BOARD OF DIRECTORS. Upon the Effective Time, the number of
members who shall comprise the entire board of directors shall be increased
from 1 to 11. The names and addresses of the persons who, upon the
Effective Time, shall constitute the board of directors of AVRI-DE, as the
corporation surviving the Merger, and who shall hold office until their
successor(s) are elected and qualified, are as follows:
NAME POSITION ADDRESS
---------------------- ---------------------------------- -----------------------------
Xxxxxxx X. Xxxxxxxx Chairman of the Board and Director 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Jan Xxxxxx Xxxxxxxx Director 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
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H. Xxxxxxx Xxxxxxx Director 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx Director 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxx X. Xxxxxx Director 0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
X. Xxxxx Bedford Director X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Xxxxxxxxx X. Xxxxxxx Director 00000 Xxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
G. Xxxxxx Xxxxxx Director 0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxxx Xxxxxx Director 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
J. Xxxxxxx Xxxxx Director 0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Xxxxxxx Xxxx Director 000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
6.4 OFFICERS. The names and addresses of the persons who, upon the
Effective Time, shall constitute the officers of AVRI-DE, as the
corporation surviving the Merger, and who shall hold office, subject to the
bylaws of AVRI-DE, until their successor(s) are elected and qualified, are
as follows:
NAME OFFICE ADDRESS
--------------------- ------------------------------ -----------------------------
Xxxxxxx X. Xxxxxxxx Chief Executive Officer 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx President and Chief Operating 0000 Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx Chief Financial Officer and 0000 Xxxx Xxx Xxxx, Xxxxx 000
Assistant Secretary Xxxxxxx, Xxxxx 00000
Jan Xxxxxx Xxxxxxxx Vice President -- 0000 Xxxx Xxx Xxxx, Xxxxx 000
Communications Xxxxxxx, Xxxxx 00000
H. Xxxxxxx Xxxxxxx Vice President -- Research 0000 Xxxx Xxx Xxxx, Xxxxx 000
and Development Xxxxxxx, Xxxxx 00000
7. APPROVAL AND EFFECTIVE TIME OF MERGER. This Merger Plan shall be
submitted to the stockholders of AVRI-UT as provided by the DGCL and the URBCA.
After the approval of this Merger Plan by the stockholders of AVRI-UT in
accordance with the requirements of the DGCL and the URBCA, all required
documents shall be executed, filed and recorded and all required acts shall be
done in order to accomplish the Merger under the provisions of the DGCL, the
URBCA and this Merger Plan; provided, however, that if any shareholders of AVRI-
UT elect to exercise their dissenter's rights, the board of directors of the
AVRI-UT may still decide, in its sole discretion, that the consummation of the
Merger Plan is not in the best interests of the Constituent Corporations and
that the transactions contemplated herein should not be completed. The Merger
shall become effective upon the issuance of certificates of merger by each of
the Secretaries of State of the States
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of Utah and Delaware subsequent to the filing of (i) a Certificate of Merger by
the Constituent Corporations with Secretary of State of the State of Delaware
and (ii) Articles of Merger by the Constituent Corporations with the Secretary
of State of the State of Utah, which filings shall occur subsequent to the date
this Merger Plan is executed and delivered by the parties hereto (the "Effective
Time").
8. OTHER PROVISIONS.
8.1 FURTHER ASSURANCES. If at any time AVRI-DE shall consider or be
advised that any further assignment or assurance in law or other action is
necessary or desirable to vest, perfect or confirm, or record or otherwise,
in AVRI-DE the title to any property or rights of AVRI-UT acquired or to be
acquired by or as a result of the Merger, the proper officers and directors
of the Constituent Corporations, respectively, shall be, and they hereby
are, severally and fully authorized to execute and deliver such deeds,
assignments and assurances in law and take such other action as may be
necessary or proper in the name of AVRI-DE or AVRI-UT to vest, perfect or
confirm title to such property or rights in AVRI-DE and otherwise carry out
the purposes of this Merger Plan.
8.2 TERMINATION PRIOR TO EFFECTIVE TIME. This Merger Plan may be
terminated at any time prior to the Effective Time of the Merger, whether
before or after action thereon by the stockholders of the Constituent
Corporations (if such stockholder approval is required), by mutual consent
of the Constituent Corporations, expressed by action of their respective
Boards of Directors.
8.3 COUNTERPARTS. For the convenience of the parties and to
facilitate the filing and recording of this Merger Plan, any number of
counterparts hereof may be executed, and each such counterpart shall be
deemed to be an original instrument.
8.4 DISSENTER'S RIGHTS. AVRI-DE is obligated for the payment of the
fair value of any shares of AVRI-UT held by a shareholder who has complied
with the requirements of Section 16-10a-1328 of the URBCA for the recovery
of the fair value of such shares.
8.5 AMENDMENTS. This Merger Plan cannot be altered or amended except
pursuant to an instrument in writing signed on behalf of all parties
hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Merger Plan to be
executed as of the date first above written.
APPLIED VOICE TECHNOLOGIES, INC.,
A Utah corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx,
Chief Executive Officer and
Chairman of the Board
APPLIED VOICE TECHNOLOGIES, INC.,
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx,
President
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