EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER made the 20 day of January, 1995, between
PD-Rx Pharmaceuticals, Inc., an Oklahoma corporation, hereinafter called the
Oklahoma Company, and a majority of the directors thereof, and PD-Rx
Pharmaceuticals, Inc., a Colorado corporation, hereinafter called the Colorado
Company, and a majority of the directors thereof.
WHEREAS, the Oklahoma Company was formed as a wholly owned subsidiary
of the Colorado Company to be the vehicle through which the Colorado Company
would reincorporate itself under the laws and jurisdiction of the State of
Oklahoma.
WHEREAS, the Oklahoma Company has an authorized capital stock
consisting of (i) 3,000,000 shares of Common Stock, par value $.01 ("Common
Stock"), of which Five Hundred (500) shares have been duly issued and are now
outstanding; and (ii) 9,000,000 shares of Preferred Stock, par value $.10 per
share ("Preferred Shares"), of which no shares have been duly issued or are
outstanding; 500,000 shares each of Class A 13.25% Cumulative Convertible
Preferred Stock, par value $.10 per share ("Class A Preferred Stock"), of which
no shares have been duly issues or are outstanding; and 500,000 shares of Class
C 13.25% Cumulative Convertible Preferred Stock, par value $.10 per share
("Class C Preferred Stock") of which no shares have been duly issued or are
outstanding.
WHEREAS, the principal office of the Oklahoma Company in the State of
Oklahoma is located at 0000 XX 0xx, Xxxxx 000, Xxxx xx Xxxxxxxx Xxxx, Xxxxxx of
Oklahoma, and Xx. Xxxxxx X. Xxxxxx, D.O. is the agent in charge thereof upon
whom process against the Oklahoma Company may be served within the State of
Oklahoma;
WHEREAS, the Colorado Company, as of December 31, 1993, has authorized
capital consisting of (a) 3,000,000 shares of Common Stock, par value $.01 per
share ("Common Share"), (i) of which 1,544,804 shares were duly issued and
outstanding, (ii) _____ shares were reserved for issuance upon exercise of
outstanding options, and (iii) 351,200 shares were reserved for conversion of
the Series A Preferred Stock and Series C Preferred Stock; (b) 9,000,000 shares
of Preferred Stock, par value $.10 per share ("Preferred Stock"), of which no
shares were issued or outstanding; (c) 500,000 shares of Class A 13.25%
Cumulative Convertible Preferred Stock, par value $.10 per share ("Series A
Preferred Stock"), of which 270,000 shares were duly issued and outstanding, and
(d) 500,000 shares of Class C 13.25% Cumulative Convertible Preferred Stock, par
value $.10 per share ("Series C Preferred Stock"), of which 81,200 shares were
duly issued and outstanding;
WHEREAS, the principal office of the Colorado Company in the State of
Colorado is located at 0000 X. Xxxxxx, Xxxxx 000-X, City of Xxxxxxxxx, Xxxxxxxx
00000 and Xx. Xxxxx X. Xxxxx, Esquire, is the agent in charge thereof upon whom
process against the Colorado Company may be served within the State of Colorado;
WHEREAS, the holders of the outstanding capital stock of the Colorado
Company entitled to vote thereon approved the reincorporation of the Colorado
Company under the laws and jurisdiction of the State of Colorado at the
Corporation's annual shareholders meeting on December 29, 1993; and
WHEREAS, the Boards of Directors of the Oklahoma Company and of the
Colorado Company, respectively, deem it advisable and generally to the advantage
and welfare of the two corporate parties and their respective shareholders that
the Colorado Company merge with and into the Oklahoma Company under and pursuant
to the provisions of Section 1083 of the Oklahoma General Corporation Act.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. The Colorado Company shall be and it hereby is merged into
the Oklahoma Company.
2. EFFECTIVE DATE. This Agreement and Plan of Merger shall become
effective immediately upon compliance with the laws of the States of Colorado
and Oklahoma, the time of such effectiveness being hereinafter called the
Effective Date. The Effective Date shall be the happening of whichever of the
following events happens last:
(a) the filing in the office of the
Secretary of State of the State of Colorado, the
Articles of Merger of PD-Rx Pharmaceuticals, Inc,
the Colorado corporation, into PD-Rx Pharmaceuticals,
Inc., the Oklahoma corporation, pursuant to
Sections 0-000-000 and 105 of the Colorado Business
Corporation Act; or
(b) the filing of the Certificate of
Ownership and Merger in the office of the Secretary
of State of the State of Oklahoma.
3. SURVIVING CORPORATION. The Oklahoma Company shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Oklahoma, but the separate corporate existence of the Colorado Company shall
cease forthwith upon the Effective Date.
4. AUTHORIZED CAPITAL. The authorized capital stock of the Oklahoma
Company following the Effective Date shall be (i) 3,000,000 shares of Common
Stock, par value $.01 per share, (ii) 9,000,000 shares of Preferred stock, par
value $.10 per share, (ii) 500,000 shares of Class A Cumulative Convertible
Preferred Stock, par value $.10 per share, and (iii) 500,000 shares of Class C
Cumulative Convertible Preferred Stock, par value $.10 per share, unless and
until the same shall be changed in accordance with the laws of the State of
Oklahoma.
5. CERTIFICATE OF INCORPORATION. (a) The Certificate of Incorporation
of the Oklahoma Company which is set forth as Appendix A hereto shall be the
Certificate of Incorporation of the Oklahoma Company following the Effective
Date unless and until the same shall be amended or repealed in accordance with
the provisions thereof, which power to amend or repeal is hereby expressly
reserved, and all rights or powers of whatsoever nature conferred in such
Certificate of Incorporation or herein upon any shareholder or director or
officer of the Oklahoma Company or upon any other person whomsoever are subject
to this reserve power. Such Certificate of Incorporation shall constitute the
Certificate of Incorporation of the Oklahoma Company separate and apart from
this Agreement and Plan of Merger and may be separately certified as the
Certificate of Incorporation of the Oklahoma Company.
(b) The Certificates of Designations setting forth the rights,
priorities, preferences and powers of the Class A Preferred Stock and Class C
Preferred Stock which are set forth as Appendix B and C, respectively, shall be
the same rights, priorities, preferences and powers of the Series A Preferred
Stock and Series C Preferred Stock as authorized and issued by the Colorado
Company following the Effective Date unless and until the same shall be amended
or repealed in accordance with the provisions thereof, which power to amend or
repeal is hereby expressly reserved, and all rights or powers of whatsoever
nature conferred in such Certificate of Designations or herein upon any
shareholder or director or officer of the Oklahoma Company or upon any other
person whomsoever are subject to this reserve power.
6. BYLAWS. The Bylaws of the Colorado Company which is set forth as
Appendix D hereto shall be the Bylaws of the Oklahoma company following the
Effective Date unless and until the same shall be amended or repealed in
accordance with the provisions thereof.
7. FURTHER ASSURANCE OF TITLE. If at any time the Oklahoma Company
shall consider or be advised that any acknowledgments or assurances in law or
other similar actions are necessary or desirable in order to acknowledge or
confirm in and to the Oklahoma Company any right, title, or interest of the
Colorado Company held immediately prior to the Effective Date, the Colorado
Company and its proper officers and directors shall and will execute and deliver
all such acknowledgements or assurances in law and do all things necessary to
carry out the purposes of this Agreement and Plan of Merger, and the Oklahoma
Company and the proper officers and
directors thereof are fully authorized to take any and all such action in the
name of the Colorado Company or otherwise.
8. RETIREMENT OF ORGANIZATION STOCK. Forthwith upon the Effective
Date, each of the 500 shares of the Common Stock of the Oklahoma Company
presently issued and outstanding shall be retired, and no shares of Common
Stock or other securities of the Oklahoma Company shall be issued in respect
thereof.
9. CONVERSION OF OUTSTANDING STOCK.
(a) Common Stock. Upon the Effective Date, each of the issued and
outstanding shares of Common Share of the Colorado Company and all rights in
respect thereof shall be converted into one fully paid and nonassessable
share of Common Stock of the Oklahoma Company, and each certificate nominally
representing shares of Common Share of the Colorado Company shall for all
purposes be deemed to evidence the ownership of a like number of shares of
Common Stock of the Oklahoma Company. The holders of such certificates shall
not be required immediately to surrender the same in exchange for
certificates of Common Stock of the Oklahoma Company; provided, however, that
as certificates nominally representing shares of Common Share of the Colorado
Company are surrendered for transfer, the Oklahoma Company will cause to be
issued certificates representing shares of Common Stock of the Oklahoma
Company and, at any time upon surrender by any holder of certificates
nominally representing shares of Common Share of the Colorado Company, the
Oklahoma Company will cause to be issued therefor certificates for a like
number of shares of Common Stock of the Oklahoma Company.
(b) Class A 13.25% Cumulative Convertible Preferred Stock. Upon the
Effective Date, each of the issued and outstanding shares of Series A
Preferred Stock of the Colorado Company and all rights in respect thereof
shall be converted into one fully paid and nonassessable share of Class A
Preferred Stock of the Oklahoma Company, and each certificate nominally
representing shares of Series A Preferred Stock of the Colorado Company shall
for all purposes be deemed to evidence the ownership of a like number of
shares of Class A Preferred Stock of the Oklahoma Company. The holders of
such certificates shall not be required immediately to surrender the same in
exchange for certificates of Class A Preferred Stock of the Oklahoma Company;
provided, however, that as certificates nominally representing shares of
Series A Preferred Stock of the Colorado Company are surrendered for
transfer, the Oklahoma Company will cause to be issued certificates
representing shares of Class A Preferred Stock of the Oklahoma Company and,
at any time upon surrender by any holder of certificates nominally
representing shares of Series A Preferred Stock of the Colorado Company, the
Oklahoma Company will cause to be issued therefor certificates for a like
number of shares of Class A Preferred Stock of the Oklahoma Company.
(c) Class C 13.25% Cumulative Convertible Preferred Stock. Upon the
Effective Date, each of the issued and outstanding shares of Series C Preferred
Stock of the Colorado Company and all rights in respect
thereof shall be converted into one fully paid and nonassessable share of
Class C Preferred Stock of the Oklahoma Company, and each certificate
nominally representing shares of Series C Preferred Stock of the Colorado
Company shall for all purposes be deemed to evidence the ownership of a like
number of shares of Class C Preferred Stock of the Oklahoma Company. The
holders of such certificates shall not be required immediately to surrender
the same in exchange for certificates of Class C Preferred Stock of the
Oklahoma Company; provided, however, that as certificates nominally
representing shares of Series C Preferred Stock of the Colorado Company are
surrendered for transfer, the Oklahoma Company will cause to be issued
certificates representing shares of Class C Preferred Stock of the Oklahoma
Company and, at any time upon surrender by any holder of certificates
nominally representing shares of Series C Preferred Stock of the Colorado
Company, the Oklahoma Company will cause to be issued therefor certificates
for a like number of shares of Class C Preferred Stock of the Oklahoma
Company.
10. OUTSTANDING STOCK OPTIONS. Forthwith upon the Effective Date,
each outstanding option to purchase shares of Common Shares of the Colorado
Company shall be converted into and become an option to purchase the same
number of shares of Common Stock of the Oklahoma Company, upon the same terms
and subject to the same conditions as set forth in such option. The same
number of shares of Common Stock of the Oklahoma Company shall be reserved
for issuance upon the exercise of restricted stock options as were so
reserved for issuance by the Colorado Company immediately prior to the
Effective Date.
11. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of the surviving corporation immediately after the
Effective Date of the merger shall be those persons who were the members of
the Board of Directors and the officers, respectively, of the Colorado
Company immediately prior to the Effective Date of the merger, and such
persons shall serve in such offices, respectively, for the terms provided by
law or in the Bylaws, or until their respective successors are elected and
qualified.
12. VACANCIES. If, upon the Effective Date, a vacancy shall exist in
the Board of Directors or in any of the offices of the Oklahoma Company as
the same are specified above, such vacancy shall thereafter be filled in the
manner provided by law and the Bylaws of the Oklahoma Company.
13. TERMINATION. Anything herein to the contrary notwithstanding,
this Agreement and Plan of Merger may be terminated and abandoned by action
of the Board of Directors of the Colorado Company at any time prior to the
Effective Date, whether before or after approval by holders of the
outstanding capital stock of the Colorado Company.
14. PLAN OF REORGANIZATION. The Agreement and Plan of Merger
constitutes a Type F Plan of Reorganization as defined under the Internal
Revenue Code, 1986 as amended, to be carried forth in the manner,
on the terms and subject to the conditions herein set forth, and as set forth
in the Proxy Statement dated December 9, 1993 delivered to the Colorado
Company holders of capital stock outstanding as of the record date.
15. BOOK ENTRIES. The merger contemplated hereby shall be treated as
a pooling of interests and as of the Effective Date entries shall be made
upon the Books of the Oklahoma Company in accordance with the following:
(a) The assets and liabilities of the Colorado Company shall be
recorded at the amounts at which they are carried on the books of the
Colorado Company immediately prior to the Effective Date with appropriate
adjustment to reflect the retirement of the 500 share of Common Stock of the
Oklahoma Company presently issued and outstanding.
(b) There shall be credited to Capital Account the aggregate amount
of the par value per share of all of the Common Stock of the Oklahoma Company
resulting from the conversion of the outstanding Common Shares of the
Colorado Company. There shall also be credited to the Capital Account the
aggregate amount of the par value per share of all of the Class A Preferred
Stock of the Oklahoma Company resulting from the conversion of the
outstanding Series A Preferred Stock of the Colorado Company along with a
credit of the aggregate amount of the par value per share of all of the Class
C Preferred Stock of the Oklahoma Company resulting from the conversion of
the outstanding Series C Preferred Stock of the Colorado Company.
(c) There shall be credited to Additional Paid-in Capital an amount
equal to that carried on the Additional Paid-in Capital of the Colorado
Company immediately prior to the Effective Date.
(d) There shall be credited or debited to Accumulated Deficit an
amount equal to that carried on the Accumulated-Deficit of the Colorado
Company immediately prior to the Effective Date.
16. EXPENSES AND RIGHTS OF DISSENTING SHAREHOLDERS. The Oklahoma
Company shall pay all expenses of carrying this Agreement and Plan of Merger
into effect and of accomplishing the merger, including amounts, if any, to
which dissenting shareholders of the Colorado Company may be entitled by
reason of this merger. The Oklahoma Company will, in the manner prescribed in
Section 0-000-000 of the Colorado Business Corporation Act (the "Act"),
within ten days after the filing and recording of the Articles of Merger
pursuant to Section 0-000-000 of the Act, notify every shareholder of the
Colorado Company whose shares were not voted in favor of the reincorporation
and who before the taking of the vote filed with the Colorado Company a
written objection to the reincorporation, that the Articles of Merger have
been so filed and recorded. If any such shareholder shall, within 30 days
after the date of mailing of such notice, demand in writing from the Oklahoma
Company payment for his stock, the Oklahoma Company shall, pay to him the
value of his stock on the date of the
recording of the Articles of Merger, exclusive of any element of value
arising from the expectation or accomplishment of the merger. Such appraisal
proceedings and the rights thereunder of such shareholders and the surviving
corporation shall in all respects be subject to and governed by the
provisions of the Colorado Business Corporation Act.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant
to authority duly granted by the Board of Directors, has caused this
Agreement and Plan of Merger to be executed by a majority of its directors
and its corporate seal to be hereunto affixed.
PD-Rx PHARMACEUTICALS, INC.
(Colorado)
ATTEST:
(CORPORATE SEAL) By:
--------------------------------
-------------------------- Name:
Name: ------------------------------
-------------------- Title: Director
Title: Secretary
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Director Title: Director
PD-Rx PHARMACEUTICALS, INC.
(Oklahoma)
ATTEST:
(CORPORATE SEAL) By:
--------------------------------
-------------------------- Name:
Name: ------------------------------
-------------------- Title: Director
Title: Secretary
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Director Title: Director
