EXHIBIT 2.10
AGREEMENT AND PLAN OF MERGER, dated as of January 27, 1998
(this "Agreement") by and between Dictaphone Corporation, a Delaware corporation
(the "Parent Company"), and Dictaphone Corporation (U.S.), a Delaware
corporation and a wholly owned subsidiary of the Parent Company (the "Operating
Company").
WHEREAS, the Board of Directors of each of the Parent Company
and the Operating Company have determined that the Parent Company be merged with
and into the Operating Company (the "Merger"), on the terms and subject to the
conditions contained herein and in accordance with the General Corporation Law
of the State of Delaware (the "DGCL");
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and in order to set forth the terms and conditions of the
Merger and the mode of carrying the same into effect, each of the Parent Company
and the Operating Company hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. At the Effective Time (as defined in
Section 1.2), the Parent Company shall merge into the Operating Company, the
separate corporate existence of the Parent Company shall cease, and the
Operating Company shall continue as the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation") which from the Effective
Time shall operate as the new parent/holding company.
SECTION 1.2. EFFECTIVE TIME OF THE MERGER. The Merger shall
become effective at midnight on January 31, 1998, if, prior to such time, a
Certificate of Ownership and Merger has been filed with the Secretary of State
of Delaware, in such form as is required by, and executed in accordance with,
the relevant provisions of the DGCL, following the requisite adoption of this
Agreement by the stockholders of the Parent Company, to the extent required by
the DGCL and the Restated Certificate of Incorporation of the Parent Company
(such time being the "Effective Time").
SECTION 1.3. EFFECT OF THE MERGER. At the Effective Time, the
effect of the Merger shall be as provided in the relevant provisions of the
DGCL. The Surviving Corporation shall continue to be governed by the laws of
Delaware. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time all property (real, personal and mixed), claims, rights,
intellectual property rights, privileges, powers, franchises and every other
interest of the Parent Company shall vest in the Surviving Corporation, and all
debts, obligations, restrictions, disabilities and duties of the Parent Company
shall become debts, obligations, restrictions, disabilities and duties of the
Surviving Corporation.
SECTION 1.4. CERTIFICATE OF INCORPORATION AND BY-LAWS. The
Certificate of Incorporation attached hereto as Exhibit A shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law or such Certificate of Incorporation. The name of the
Surviving Corporation shall be Dictaphone Corporation as set forth in such
Certificate of Incorporation. The By-laws of the Parent Company, as in effect on
the Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter amended as provided by law, the Certificate of Incorporation of the
Surviving Corporation or such By-laws.
SECTION 1.5. DIRECTORS AND OFFICERS. The directors of the
Parent Company on the Effective Date, shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, and the officers of the
Parent Company on the Effective Date shall be the initial officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
SECTION 1.6. CONVERSION OF SECURITIES. (a) Each issued and
outstanding share of Common Stock, par value $0.01 per share, of the Parent
Company ("Common Stock"), shall automatically, without further action by the
Surviving Corporation, be converted into one validly issued, fully paid and
nonassessable share of Common Stock, par value $0.01 per share, of the Surviving
Corporation; (b) each issued and outstanding Warrant to purchase shares of
Common Stock, with an expiration date of August 11, 2005, of the Parent Company,
shall automatically, without further action by the Surviving Corporation, be
converted into one Warrant to purchase shares of common stock of the Surviving
Corporation with the same rights, designations and preferences; and (c) each
issued and outstanding share of 14% Pay-in-Kind Perpetual Preferred Stock, par
value $0.01 per share of the Parent Company shall automatically, without further
action by the Surviving Corporation, be converted into one share of 14%
Pay-in-Kind Perpetual Preferred Stock of the Surviving Corporation.
SECTION 1.7. TREATMENT OF STOCK SUBSCRIPTIONS AND STOCK
OPTIONS. (a) At the Effective Time, the Surviving Corporation shall assume all
the duties and obligations of the Parent Company under (i) the Management
Subscription Agreement, dated as of August 7, 1995, by and among Dictaphone
Acquisition Inc. and certain management investors listed therein and (ii) the
Dictaphone Corporation Management Stock Option Plan, effective as of August 11,
1995 (the "Stock Option Plan").
(b) At the Effective Time, each option granted by the Parent
Company to purchase shares of Common Stock which is outstanding and unexercised
immediately prior thereto shall be assumed by the Surviving Corporation. Such
options shall cease to represent a right to acquire shares of Common Stock and
shall be converted automatically into an option to purchase shares of common
stock of the Surviving Corporation in accordance with the terms of the Stock
Option Plan.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARENT COMPANY
The Parent Company represents and warrants that (A) it is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, with all necessary corporate power and authority to enter into
and perform its obligations under this Agreement and (B) this Agreement has been
duly and validly authorized, executed and delivered by the Parent Company and is
binding on and enforceable against the Parent Company in accordance with its
terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OPERATING COMPANY
The Operating Company represents and warrants that (A) it is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, with all necessary corporate power and authority to enter into
and perform its obligations under this Agreement and (B) this Agreement has been
duly and validly authorized, executed and delivered by the Operating Company and
is binding on and enforceable against the Operating Company in accordance with
its terms.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The parties hereto each agree that all representations and
warranties contained herein shall not survive the Effective Time.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.1. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of Delaware applicable to
contracts executed in and performed in that State, without regard to principles
of conflicts of law thereof.
SECTION 5.2. COUNTERPARTS. This Agreement may be executed in
one or more counterparts (including by facsimile transmission), and by the
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written by their respective
officers.
DICTAPHONE CORPORATION
By: /S/ XXXXXX X. XXXX
______________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
General Counsel and Secretary
DICTAPHONE CORPORATION (U.S.)
By: /S/ XXXXXX X. XXXX
______________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
General Counsel and Secretary
