Exhibit 10.22
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION
This Plan and Agreement of Merger (this "AGREEMENT"), dated as of
March, 12, 2004 is entered into by and among Cardiotech International, Inc., a
Massachusetts corporation ("Cardiotech"), Dermaphylyx International Inc., a
Delaware corporation ("DERMAPHYLYX DELAWARE") and Dermaphylyx International
Inc., a Massachusetts corporation ("DERMAPHYLYX Massachusetts") a wholly-owned
subsidiary of Cardiotech , each with an office at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS:
WHEREAS, the Board of Directors of each of the parties to this
Agreement have determined it is in the best interests of the parties to this
Agreement and their shareholders to effect a business combination pursuant to
which Dermaphylyx Delaware will merge with and into Dermaphylyx Massachusetts on
the terms and subject to the conditions set forth herein (the "MERGER");
WHEREAS, the Board of Directors of each of Cardiotech, Dermaphylyx
Delaware and Dermaphylyx Massachusetts and the shareholders of Dermaphylyx
Delaware and Dermaphylyx Massachusetts have approved this Agreement and the
Merger pursuant to the terms and conditions herein set forth as of the date
hereof;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify to the extent possible as a reorganization within the
meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended
(the "CODE");
NOW, THEREFORE, in consideration of the above premises and the mutual
promises set forth in this Agreement, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows.
THE MERGER
Section 1. THE MERGER. At the Effective Time (as hereinafter defined) and upon
the terms and subject to the conditions of this Agreement and in accordance with
the Delaware General Corporation Law (the "DGCL") and the Massachusetts General
Laws, Chapter 156B (the "MGL"), Dermaphylyx Delaware shall be merged with and
into Dermaphylyx Massachusetts. Following the Merger, Dermaphylyx Massachusetts
shall continue as the surviving corporation (the "SURVIVING CORPORATION"), and
the separate corporate existence of Dermaphylyx Delaware shall cease.
Section 2. EFFECTIVE TIME. The parties hereto will file with the Secretary of
State of the State of Delaware and the Secretary of Commonwealth of the
Commonwealth of Massachusetts or other governmental agencies as required under
applicable law certificates of merger in such form as required by, and executed
in accordance with, the relevant provisions of the corporation law of each such
state. The effective time of the later of the filing of the certificate of
merger with the Secretary of State of the State of Delaware or the Secretary of
the Commonwealth of Massachusetts, as required under applicable law, is the
"Effective Time."
Section 3. EFFECTS OF THE MERGER. The Merger shall have the effects set forth in
the DGCL and the MGL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights, privileges,
powers and franchises of Dermaphylyx Delaware and Dermaphylyx Massachusetts
shall vest in the Surviving Corporation, and all debts, liabilities and duties
of Dermaphylyx Delaware and Dermaphylyx Massachusetts shall become the debts,
liabilities and duties of the Surviving Corporation.
Section 4. CERTIFICATE OF INCORPORATION AND BYLAWS. The certificate of
incorporation and by-laws of Dermaphylyx Massachusetts, as in effect immediately
prior to the Effective Time, shall be the certificate of incorporation and
by-laws of the Surviving Corporation until amended in accordance with applicable
law.
Section 5. DIRECTORS AND OFFICERS. As of the Effective Time, the directors and
officers of the Surviving Corporation shall be comprised of the individuals
listed in SCHEDULE 5 hereto who shall hold office in accordance with the
certificate of incorporation and bylaws of the Surviving Corporation until their
successors are duly elected or appointed and qualified or until their earlier
death, resignation or removal.
Section 6. CONVERSION OF DERMAPHYLYX MASSACHUSETTS AND DERMAPHYLYX DELAWARE
SECURITIES
(a) At the Effective Time, each outstanding share of the Common Stock,
par value $0.01 per share, of Dermaphylyx Delaware shall, by virtue of the
Merger and without any action on the part of Cardiotech, Dermaphylyx Delaware or
Dermaphylyx Massachusetts, be canceled and extinguished and converted into the
right to recover (i) newly issued fully paid and non-assessable shares of Common
Stock, par value $ .01 per share, of Cardiotech (the "Cardiotech COMMON STOCK")
at an exchange ratio (the "EXCHANGE RATIO") of 3.827 shares of Cardiotech Common
Stock for each share of Dermaphylyx Delaware Common Stock so that an aggregate
of 3,827 shares of Cardiotech Common Stock shall be issued to the Shareholders
of Dermaphylyx Delaware (the "Conversion Consideration").
(b) At the Effective Time, all options, warrants, convertible notes and
other rights, entitling the holders thereof to purchase or otherwise acquire any
shares of Dermaphylyx Delaware capital stock shall be canceled, retired and
cease to exist at and as of the Effective Time.
(c) The holders of the Shares of Dermaphylyx Massachusetts prior to the
Effective Time shall remain the holders of shares of Dermaphylyx Massachusetts
after the Effective Time with no change in ownership.
Section 7. TAX CONSEQUENCES. It is intended by the parties hereto that the
Merger shall constitute a tax-free reorganization within the meaning of Section
368(a)(1)(A) of the Code. Each party hereto shall use its commercially
reasonable efforts to cause the Merger to be so qualified, shall report the
transactions contemplated by this Agreement in a manner consistent with such
reorganization treatment and will not take any position inconsistent therewith
in any tax return, refund claim, litigation or otherwise unless required to do
so by law.
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Section 8. NO FURTHER OWNERSHIP RIGHTS IN DERMAPHYLYX DELAWARE COMMON STOCK. The
Conversion Consideration issued or paid upon conversion of Dermaphylyx Delaware
Common Stock in accordance with the terms of Section 6 above shall be deemed to
have been issued or paid in full satisfaction of all rights pertaining to
Dermaphylyx Delaware Common Stock. At the Effective Time, subject to and after
giving effect to the provisions of Section 6(b) above, each share of Dermaphylyx
Delaware Common Stock owned prior to the Effective Time shall be canceled and
extinguished.
Section 9. STOCK CERTIFICATES. At or after the Effective Time, any certificates
representing Dermaphylyx Delaware Common Stock presented to the Surviving
Corporation or Cardiotech for any reason shall be converted into Cardiotech
Common Stock with respect to Dermaphylyx Massachusetts Common Stock formerly
represented thereby at the Exchange Ratio and the other applicable Conversion
Consideration.
Section 10. SHAREHOLDERS' ApprOVAL. This Agreement and the Merger provided for
herein have been submitted for approval to, and approved by, the sole
shareholder of Dermaphylyx Massachusetts in the manner prescribed by the
provisions of the MGL. This Agreement and the Merger provided for herein have
been submitted for approval to, and approved by, the shareholders of Dermaphylyx
Delaware in the manner prescribed by the provisions of the DGCL.
Section 11. COMMERCIALLY REASONABLE EFFORTS. Subject to the terms and conditions
of this Agreement, each party will use commercially reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws to consummate the Merger
and the other transactions contemplated by this Agreement. Neither Cardiotech,
Dermaphylyx Delaware nor Dermaphylyx Massachusetts will take, agree to take or
knowingly permit to be taken any action or do or knowingly permit to be done
anything in the conduct of the business of the companies, or otherwise, which
would be contrary to or in breach of any of the terms or provisions of this
Agreement.
Section 12. TERMINATION. This Agreement may be terminated and the Merger and the
other transactions contemplated herein may be abandoned at any time prior to the
Effective Time by mutual consents of Dermaphylyx Massachusetts, Cardiotech and
Dermaphylyx Delaware.
Section 13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Massachusetts, excluding any choice of law rules
that may direct the application of the laws of another jurisdiction.
Section 14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed on their behalf by their respective officers thereunto duly authorized
all as of the date first above written.
CARDIOTECH INTERNATIONAL INC.
By:
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Name: Xxxxxxx Xxxxxxx
Title: President
DERMAPHYLYX INTERNATIONAL INC., A
DELAWARE CORPORATION
By:
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Name: Xxxxxxx Xxxxxxx
Title: Chairman
DERMAPHYLYX INTERNATIONAL INC., A
MASSACHUSETTS CORPORATION
By:
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Name: Xxxxxxx Xxxxxxx
Title: President
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SCHEDULE 5
The following persons shall be directors of the Surviving Corporation as of the
Effective Time:
The following persons shall hold the offices of the Surviving Corporation set
forth opposite their respective names as of the Effective Time:
NAME OFFICE
---- ------
XXXXXXX XXXXXXX President
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XXXXXX XXXXXX Clerk
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XXXXXX XXXXXX Treasurer
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