AGREEMENT AND PLAN OF MERGER BETWEEN VIRAL GENETICS, INC., (a California corporation) AND V-CLIP, INC. (a California corporation) AND VIRAL GENETICS, INC., (a Delaware corporation)
Exhibit
10.1
BETWEEN
VIRAL
GENETICS, INC.,
(a
California corporation)
AND
V-CLIP,
INC.
(a
California corporation)
AND
VIRAL
GENETICS, INC.,
(a
Delaware corporation)
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of
October __, 2008, between Viral Genetics, Inc., a California corporation
(“Viral”) and V-Clip Pharmaceuticals, Inc., a California corporation (“V-Clip”)
and Viral Genetics, Inc., a Delaware corporation (“Viral
Delaware”).
This
Agreement contemplates a tax-free merger of V-Clip into Viral and the issuance
of Viral Delaware securities to the shareholders of V-Clip in a reorganization
pursuant to the Internal Revenue Code Section 368(a)(2)(D).
RECITALS
WHEREAS,
Viral is a corporation duly organized and existing under the laws of the State
of California and a wholly owned subsidiary of Viral Delaware; and
WHERAS,
V-Clip is a corporation duly organized and existing under the laws of the State
of California; and
WHEREAS,
further to a Memorandum of Understanding dated July 22, 2008between V-Clip,
Viral Delaware, and solely with respect to Section 10 and Exhibit A(ii)-(iii)
therein, University License Equity Holdings, Inc., a Colorado non-profit
corporation (“ULEHI”), the Board of Directors of Viral and the Board of
Directors of V-Clip deem it advisable to merge V-Clip into Viral so that Viral
is the surviving corporation on the terms provided herein (the
“Merger”).
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE
I
MERGER
Section
1.1 The
Merger. After satisfaction or, to the extent permitted hereunder, waiver
of all conditions to the Merger, and subject to the applicable provisions of the
California Corporations Code, V-Clip will merge with and into Viral and Viral
shall file this Agreement and Plan of Merger with the Secretary of State of the
State of California in accordance with the provisions of the California
Corporations Code and shall make all other filings or recordings required by
California in connection with the Merger. The Merger shall become effective upon
the later filing of such Agreement and Plan of Merger with the Secretary of
State of the State of California, or at such later time as may be provided for
in such Agreement and Plan of Merger (the “Effective Time”). Upon the Effective
Time, the separate corporate existence of V-Clip shall cease and Viral shall be
the surviving corporation (the “Surviving Corporation”).
Section
1.2 Conditions to the
Merger. The respective obligation of each party to effect the Merger is
subject to the satisfaction or waiver (except as provided in this Agreement) of
the following conditions:
(a) This
Agreement shall have been ratified by the sole shareholder of Viral, that is,
Viral Delaware, in accordance with the requirements of the Delaware General
Corporation Law and the Certificate of Incorporation and Bylaws of
Viral;
(b) This
Agreement shall have been adopted by the holders of at least a majority of the
outstanding voting power of V-Clip in accordance with the requirements of the
California Corporations Code and the Certificate of Incorporation and Bylaws of
V-Clip.
Section
1.3 Transfer,
Conveyance and Assumption. At the Effective Time, Viral shall continue in
existence as the Surviving Corporation and, without further transfer, succeed to
and possess all rights, privileges, powers and franchises of V-Clip, and all of
the assets and property of whatever kind and character of V-Clip shall vest in
Viral, as the Surviving Corporation without further deed; thereafter, Viral, as
the Surviving Corporation, shall be liable for all of the liabilities and
obligations of V-Clip and any claim or judgment against V-Clip may be enforced
against Viral, as the Surviving Corporation.
Section
1.4 Certificate of
Incorporation; Bylaws.
(a) From
and after the Effective Date, the Certificate of Incorporation of Viral shall be
the Certificate of Incorporation of the Surviving Corporation.
(b) From
and after the Effective Date, the ByLaws of Viral shall be the Bylaws of the
Surviving Corporation.
Section
1.5 Directors and
Officers of the Surviving Corporation. From and after the Effective Time,
the directors and officers of Viral serving as directors or officers of Viral
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation.
ARTICLE
II
CONVERSION
OF SHARES
Section
2.1 Conversion of
Stock. Upon the Effective Time, by virtue of the Merger and without any
action of the part of the holder of any outstanding share of V-Clip, other than
shares of dissenting stockholders under California law, each share of V-Clip
shall be converted to 3,706 shares of Viral Delaware, rounded to the nearest
whole number of shares. Notwithstanding the foregoing, the University License
Equity Holdings, Inc., a Colorado nonprofit corporation, shall not receive
shares of Viral Delaware shares, all as specifically set forth on Exhibit A to
that certain Consent and Understanding of Viral Delaware of even date herewith,
and thereupon each share of V-Clip issued and outstanding shall be canceled and
no consideration be issued in respect thereof. In addition, Viral Delaware shall
issue such Common Stock and warrants to purchase Common Stock of Viral Delaware,
all as more specifically set forth on said Exhibit A of said Consent and
Understanding. The converted shares and warrants described herein are
jointly referred to as the “Merger Securities.”
Section
2.2 Shares
of Dissenting Shareholders. Notwithstanding any thing in the Agreement to
the contrary, any issued and outstanding shares of capital stock of V-Clip held
by a person (a “Dissenting Shareholder”) who shall not have voted or consented
in writing to adopt this Agreement and who properly demands appraisal for such
shares in accordance the California Corporations Code (“Dissenting Shares”)
shall not be converted as described in Section 2.1 but shall be converted into
the right to receive such consideration as may be determined to be due to such
Dissenting Shareholder pursuant to the California Corporations Code unless such
holder fails to perfect or withdraw or otherwise loses his right of appraisal.
If, after the Effective Time, such Dissenting Shareholder fails to perfect or
withdraws or loses his right to appraisal, such Dissenting Shareholder’s share
of capital stock of V-Clip shall no longer be considered Dissenting Shares for
the purposes of this Agreement and such holder’s shares of capital stock of
Delaware shall thereupon be deemed to have been converted at the Effective Time,
as set forth in Section 2.1.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1 Representations
and Warranties of V-Clip V-Clip hereby represents and warrants that
it:
(a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, and has all the requisite power and authority to
own, lease and operate its properties and assets and to carry on business as it
is now being conducted;
(b) is
duly qualified to do business as a foreign person, and is in good standing, in
each jurisdiction where the character of it properties or the nature of its
activities make such qualification necessary;
(c) is
not in violation of any provisions of its certificate of incorporation or
bylaws; and
(d) has
full corporate power and authority to execute and deliver this Agreement and,
assuming the adoption of this Agreement by the shareholders of V-Clip in
accordance with the California Corporations Code and the Certificate of
Incorporation and Bylaws of V-Clip, consummate the Merger and the other
transactions contemplated by this Agreement.
Section
3.2 Representations
and Warranties of Viral. Viral hereby represents and warrants that
it:
a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, and has all the requisite power and authority to
own, lease and operate its properties and assets and to carry on business as it
is now being conducted;
(b) is
duly qualified to do business as a foreign person, and is in good standing, in
each jurisdiction where the character of it properties or the nature of its
activities make such qualification necessary;
(c) is
not in violation of any provisions of its certificate of incorporation or
bylaws; and
(d) has
full corporate power and authority to execute and deliver this Agreement and,
assuming the adoption of this Agreement by the shareholders of Viral in
accordance with the California Corporations Code and the Certificate of
Incorporation and Bylaws of V-Clip, consummate the Merger and the other
transactions contemplated by this Agreement.
Section
3.3 Securities Act
and State Securities Laws. Viral Delaware will take such further action
it deems necessary to reasonably rely on exemptions for sales of securities
under the Securities Act of 1933, as amended, with respect to the issuance of
the Merger Securities. Viral Delaware will take all actions that may be
necessary, proper, or advisable under t state securities laws in connection with
the offering and issuance of the Merger Securities.
ARTICLE
IV
TERMINATION
Section
4.1 Termination.
At any time prior to the Effective Time, this Agreement may be terminated and
the Merger abandoned for any reason whatsoever by the Board of Directors of
V-Clip or the Board of Directors of Viral, notwithstanding the adoption of this
Agreement by the shareholders of V-Clip or Viral.
ARTICLE
V
FURTHER
ASURANCES
Section
5.1 Further
Assurances as to V-Clip. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any further assignment,
conveyance or assurance in law or any other acts are necessary or desirable to
(i) vest, perfect or confirm in the Surviving Corporation its right, title or
interest in, to or under any of the rights, properties or assets of V-Clip
acquired or to be acquired by the Surviving Corporation as a result of or in
connection with, the Merger, or (ii) otherwise carry out the purposes of this
Agreement, V-Clip and its proper officers shall be deemed to have granted to the
Surviving Corporation an irrevocable power of attorney to executed and deliver
all such proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and possession of such
rights, properties or assets in the Surviving Corporation and otherwise carry
out the purposes of this Agreement; and the officers and directors of the
Surviving Corporation are fully authorized in the name of V-Clip or
otherwise to take any and all such action.
ARTICLE
VI
MISCELLANEOUS
Section
6.1 Amendment.
At any time prior to the Effective Time, this Agreement may be amended, modified
or supplemented by the Board of Directors of V-Clip and Viral, whether before or
after the adoption of this Agreement by the shareholders of V-Clip and Viral;
provided, however, that after any such adoption, there shall not be made any
amendment that by law requires the further approval by such shareholder of
V-Clip or Viral without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of V-Clip, Viral,
and Viral Delaware.
Section
6.2. No
Waivers. No failure or delay by any party hereto exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other further exercise thereof
or the exercise of any other right power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
6.3
Assignment; Third Party Beneficiaries. Neither this Agreement, nor any
right, interest or obligation hereunder, shall be assigned to any of the parties
hereto without the prior written consent of the other parties. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement is not intended to confer any
rights or benefits upon any person other than the parties hereto.
Section
6.4 Governing
Law. This Agreement shall in all respects be interpreted by and
construed, interpreted and enforced in accordance with and pursuant to the laws
of the State of California.
Section
6.5 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Section
6.6 Entire
Agreement. This Agreement and the documents referred to herein are
intended by the parties as a final expression of the agreement with respect to
the subject mater hereof, and are intended as the complete and exclusive
statement of the terms and conditions of that agreement and there are not other
agreements or understandings, written or oral, among the parties, relating to
the subject matter hereof. This Agreement supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the subject
matter hereof.
Section
6.7 Service
of Process. Surviving Corporation agrees that it may be served with
process in the State of California in any proceeding for enforcement of any
obligation of any constituent corporation of the State of California, as well as
for enforcement of any obligation of the Surviving Corporation arising from the
Merger, and does hereby irrevocably appoint the Secretary of State of the State
of California as its agent to accept service of process in any such suit or
proceeding. The address to which a copy of such process shall be mailed by the
Secretary of State of the State of California is 0000 Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxxx, XX 00000.
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Agreement as of the date first stated above.
| V-Clip Pharmaceuticals Inc. | |||
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By:
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| Name: | |||
| Title: | |||
| Viral Genetics, Inc., a California corporation | |||
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By:
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| Name: | |||
| Title: | |||
| Viral Genetics, Inc., a Delaware corporation | |||
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By:
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| Name: | |||
| Title: | |||
