EXHIBIT 2.1
AGREEMENT OF MERGER (the "Agreement"), dated as of October 7, 1996, by
and between NICHE PHARMACEUTICALS, INC., a Delaware corporation ("Niche
Delaware"), and NICHE PHARMACEUTICALS, INC., a Texas corporation ("Niche
Texas").
Niche Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capitalization of
15,000,000 shares of Common Stock, par value $.01 per share, 10 shares of which
are outstanding and are held by Niche Texas, and 2,000,000 shares of Preferred
Stock, par value $.01 per share, none of which are outstanding.
Niche Texas is a corporation duly organized and existing under
the laws of the State of Texas and has an authorized capitalization of 1,000,000
shares of Common Stock par value $.01 per share.
The respective Boards of Directors of Niche Delaware and Niche
Texas have determined that, for the purpose of effecting the reincorporation of
Niche Texas in the State of Delaware, it is advisable and to the advantage of
such two corporations that Niche Texas merge with and into Niche Delaware upon
the terms and conditions herein provided.
The respective Boards of Directors of Niche Delaware and Niche
Texas have approved this Agreement and the Boards of Directors of Niche Delaware
and Niche Texas have directed that this Agreement be submitted to a vote of
their respective stockholders.
NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Niche Delaware and Niche Texas, subject to the terms
and conditions hereinafter set forth, hereby agree, as follows:
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MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law ("Delaware Law") and the Texas Business
Corporation Act ("Texas Law"), Niche Texas shall be merged with and into Niche
Delaware (the "Merger"). Niche Delaware shall be and is hereinafter sometimes
referred to as the "Surviving Corporation." Niche Delaware and Niche Texas are
sometimes hereinafter referred to as the "Constituent Corporations."
1.2 Filing and Effectiveness. The Merger shall become effective (the
"Effective Date of the Merger") for all purposes, including, without limitation,
accounting and operational purposes, except for purposes of the State of Texas,
when the following actions shall have been completed:
(a) The Agreement and the Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of Delaware and Texas Law; and
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(b) An executed Certificate of Ownership and Merger meeting
the requirements of Delaware Law, shall have been filed with the Secretary of
State of the State of Delaware in accordance with the applicable laws of such
State; and
1.3 Texas Filing. An executed Articles of Merger meeting the
requirements of Texas Law, shall be filed with the Secretary of State of the
State of Texas in accordance with the applicable laws of such State,
contemporaneously with the filing of the Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware described in Section
1.2(b).
1.4 By-laws. The By-laws of Niche Delaware as in effect on the
Effective Date of the Merger shall continue in full force and effect as the
By-laws of the Surviving Corporation.
1.5 Directors and Officers. The directors and officers of Niche
Delaware immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their successors shall
have been elected and shall qualify or until otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation and the By-laws of the
Surviving Corporation.
1.6 Effect of Merger. Upon the Effective Date of the Merger, the
separate existence of Niche Texas shall cease and Niche Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its rights and
property as constituted immediately prior to the Effective Date of the Merger
and shall succeed, without other transfer, to all of the rights and property of
Niche Texas, and (ii) shall continue to be subject to all of its debts and
liabilities as constituted immediately prior to the Effective Date of the Merger
and shall succeed, without other transfer, to all of the debts and liabilities
of Niche Texas in the same manner as if Niche Delaware had itself incurred them,
pursuant to Delaware and Texas Law.
II
MANNER OF CONVERSION OF STOCK
2.1 Niche Texas Capital Stock. The Common Shares of Niche Texas issued
and outstanding on the Effective Date of the Merger shall, by virtue of the
Merger and without any action by the holder of such shares or the Surviving
Corporation, be converted into fully paid and nonassessable shares of Common
Stock, par value $.01 per share, of the Surviving Corporation on the basis of
one and one-fourth (1 1/4) shares of Common Stock of the Surviving Corporation
for each one (1) share of Common Stock of Niche Texas.
2.2 Fractional Shares. No fractional shares of Common Stock of the
Surviving Corporation or cash in lieu thereof shall be issued or paid in
connection with the conversion pursuant to Section 2.1. If fractional shares
would otherwise result from such conversion, stockholders who would be entitled
to receive such fractional shares if they were to be issued shall instead
receive a full share.
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2.3 1996 Stock Option Plan. On the Effective Date of the Merger, the
1996 Stock Option Plan of Niche Texas shall become the 1996 Stock Option Plan of
the Surviving Corporation and the number of shares of Common Stock authorized
for issuance upon the exercise of options granted under the 1996 Stock Option
Plan shall be increased on the basis of one and one-fourth (1 1/4) shares of
Common Stock of the Surviving Corporation for each one (1) share of Common Stock
of Niche Texas.
2.4 Niche Texas Rights and Options. On the Effective Date of the
Merger, each outstanding right and option to acquire shares of Common Stock of
Niche Texas shall become, respectively, rights and options to acquire shares of
the Surviving Corporation's Common Stock on the basis of one and one-fourth (1
1/4) shares of the Surviving Corporation's Common Stock for each one (1) share
of Common Stock of Niche Texas issuable pursuant to any such right or option, as
the case may be, at a price per share equal to the purchase (or conversion)
price under such Niche Texas right or option prevailing at the Effective Date of
the Merger divided by one and one-fourth (1 1/4).
2.5 Niche Delaware Capital Stock. Any then outstanding shares of Common
Stock of Niche Delaware which are owned by Niche Texas immediately prior to the
Merger shall be canceled at the Effective Date of the Merger.
III
MISCELLANEOUS
3.1 Niche Delaware Certificate of Incorporation. Annexed hereto
as Exhibit A is the Certificate of Incorporation of Niche Delaware.
3.2 Abandonment. At any time before the Effective Date of the Merger,
the Agreement may be terminated and the Merger may be abandoned for any reason
whosoever by the Board of Directors of either Niche Texas or Niche Delaware or
both, notwithstanding approval of the Agreement by the stockholders of Niche
Texas, the stockholders of Niche Delaware or both.
3.3 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 00 Xxxx Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx, and United Corporate Services, Inc. is the registered agent of the
Surviving Corporation at such address.
3.4 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 000 Xxxxx Xxx,
Xxxxxxx, Xxxxx, and copies thereof will be furnished to the stockholders of each
Constituent Corporation upon request and without cost.
3.5 Governing Law. The Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware, and, so far as applicable, the merger provisions of Texas
Law.
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3.6 Counterparts. The Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Agreement, having been first approved by
resolutions of the Board of Directors of Niche Delaware and Niche Texas, is
hereby executed on behalf of each of such two corporations by their respective
officers thereunto duly authorized.
NICHE PHARMACEUTICALS, INC.,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
NICHE PHARMACEUTICALS, INC.,
a Texas corporation
By:/s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
K:\WPDOC\CORP\NICHE\AGREEMNT\MERGER.996
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