AGREEMENT AND PLAN OF
MERGER
BETWEEN INNUITY, INC.,
A UTAH CORPORATION,
INNUITY WASHINGTON, INC.,
A WASHINGTON CORPORATION
THIS AGREEMENT AND
PLAN OF MERGER dated as of November 25, 2008 (this
“Agreement”) is between Innuity, Inc., a Utah
corporation (“Innuity Utah”), and Innuity Washington,
Inc., a Washington corporation (“Innuity Delaware”).
Innuity Utah and Innuity Washington are also referred to herein as
the “Constituent Corporations.”
A. Innuity
Utah is a corporation duly organized and existing under the laws of
the state of Utah and has authorized capital of 200,000,000 shares,
$0.00025 par value per share, of which all shares are designated
“Common Stock”. As of November 19, 2008,
26,693,392 shares of Common Stock were issued and
outstanding.
B. Innuity
Washington is a corporation duly organized and existing under the
laws of the state of Washington and has authorized capital of
200,000,000 shares, $0.0001 par value per share, all of which are
designated “Common Stock”. As of November 19,
200,000 shares of Common Stock were issued and outstanding, all of
which are owned by Innuity Utah.
C. The Board
of Directors of Innuity Utah has determined that, for the purpose
of effecting the reincorporation of Innuity Utah in the state of
Washington, it is advisable and in the best interests of Innuity
Utah and its stockholders that Innuity Utah merge with and into
Innuity Washington upon the terms and conditions herein
provided.
D. The
respective Boards of Directors of Innuity Utah and Innuity
Washington have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective shareholders,
and executed by the undersigned officers.
NOW, THEREFORE, in
consideration of the mutual agreements and covenants set forth
herein Innuity Utah and Innuity Washington hereby agree, subject to
the terms and conditions hereinafter set forth, as
follows:
1.1 Merger.
In accordance with the provisions of this Agreement, the Utah
Revised Business Corporation Act and the Washington Business
Corporation Act, Innuity Utah shall be merged with and into Innuity
Washington (the “Merger”), the separate existence of
Innuity Utah shall cease and Innuity Washington shall survive the
Merger and shall continue to be governed
by the laws of
the state of Washington, and Innuity Washington shall be, and is
herein also referred to as, the “Surviving
Corporation,” and the name of the Surviving Corporation shall
be changed to Innuity, Inc.
1.2 Filing and
Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement
and the Merger shall have been adopted and approved by the
shareholders of Innuity Utah and the sole shareholder of Innuity
Washington, in accordance with the respective requirements of the
Utah Revised Business Corporation Act and the Washington Business
Corporation Act;
(b) All of the
conditions precedent to the consummation of the Merger specified in
this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) Executed
Articles of Merger shall have been filed with the Washington
Secretary of State; and
(d) Executed
Articles of Merger shall have been filed with the Department of
Commerce, Division of Corporations and Commercial Code.
The date and time
when the Merger shall become effective, as aforesaid, is herein
called the “Effective Date of the Merger.”
1.3 Effect of
the Merger. Upon the Effective Date of the Merger, the separate
existence of Innuity Utah shall cease and Innuity Washington, as
the Surviving Corporation, shall (i) continue to possess all
of its assets, rights, powers and property as constituted
immediately prior to the Effective Date of the Merger; (ii) be
subject to all actions previously taken by its and Innuity
Utah’s Board of Directors; (iii) succeed, without other
transfer, to all of the assets, rights, powers and property of
Innuity Utah in the manner as more fully set forth in
Chapter 23B.11.060 of the Washington Business Corporation Act;
(iv) continue to be subject to all of its debts, liabilities
and obligations as constituted immediately prior to the Effective
Date of the Merger; and (v) succeed, without other transfer,
to all of the debts, liabilities and obligations of Innuity Utah in
the same manner as if Innuity Washington had itself incurred them,
all as more fully provided under the applicable provisions of the
Washington Business Corporation Act and the Utah Revised Business
Corporation Act.
II. CHARTER DOCUMENTS, DIRECTORS
AND OFFICERS
2.1 Articles of
Incorporation. The Articles of Incorporation of Innuity
Washington as in effect immediately prior to the Effective Date of
the Merger shall continue in full force and effect as the Articles
of Incorporation of the Surviving Corporation, except that
Article 1 of the Articles of Incorporation of the Surviving
Corporation is hereby amended in its entirety to read as
follows:
The name of this corporation is
Innuity, Inc.”
2.2 Bylaws.
The Bylaws of Innuity Washington as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable
law.
2.3 Directors
and Officers. Each director of Innuity Utah immediately prior
to the Effect
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