EXHIBIT 2.1
PARADIGM GENETICS, INC.
A NORTH CAROLINA CORPORATION
AND
PARADIGM GENETICS, INC.
A DELAWARE CORPORATION
PLAN AND AGREEMENT OF MERGER
----------------------------
This Plan and Agreement of Merger (the "Agreement") is entered into as of the
10th day of March, 2000, by and between PARADIGM GENETICS, INC., a North
Carolina corporation ("Paradigm North Carolina"), and PARADIGM GENETICS, INC., a
Delaware corporation ("Paradigm Delaware"). Paradigm North Carolina and
Paradigm Delaware are sometimes referred to herein as the "Constituent
Corporations."
WHEREAS, Paradigm North Carolina was incorporated under the laws of the State
of North Carolina on September 9, 1997, and has authorized capital stock of
30,000,000 shares of Common Stock, $0.01 par value per share, of which 5,479,181
shares are outstanding, 8,000,000 shares of Series A Preferred Stock, $0.01 par
value per share, of which 7,562,500 shares are outstanding, 2,790,698 shares of
Series B Preferred Stock, $0.01 par value per share, of which 2,790,698 shares
are outstanding, and 3,000,000 shares of Series C Preferred Stock, $0.01 par
value per share, of which 3,000,000 shares are outstanding, and 1,209,302 shares
of undesignated and unissued preferred stock, $0.01 par value per share; and
WHEREAS, Paradigm Delaware was incorporated under the laws of the State of
Delaware on March 10, 2000 and on the Effective Date (as defined below) will
have authorized capital stock of 50,000,000 shares of Common Stock, par value
$0.01 per share, of which one (1) share is outstanding, 7,562,500 shares of
Series A Preferred Stock, $0.01 par value per share, of which no shares are
outstanding, 2,790,698 shares of Series B Preferred Stock, $0.01 par value per
share, of which no shares are outstanding, 3,000,000 shares of Series C
Preferred Stock, $0.01 par value per share, of which no shares are outstanding
and 5,000,000 shares of undesignated and unissued preferred stock, $0.01 par
value per share; and
WHEREAS, the respective Boards of Directors of Paradigm North Carolina and
Paradigm Delaware deem it advisable and in the best interests of their
respective corporations that Paradigm North Carolina merge with and into
Paradigm Delaware (the "Merger") and to enter into and perform this Agreement
pursuant to the laws of North Carolina and Delaware, as applicable; and
WHEREAS, the Board of Directors of Paradigm North Carolina have approved this
Agreement pursuant to Sections 55-11-01 and 55-11-03 of the North Carolina
Business Corporation Act ("N.C.B.C.A."); and
WHEREAS, the Board of Directors of Paradigm Delaware have approved this
Agreement pursuant to Sections 252 of the Delaware General Corporate Law
("D.G.C.L.").
NOW, THEREFORE, Paradigm North Carolina and Paradigm Delaware hereby agree as
follows:
1. Merger. Subject to the terms and conditions hereof, Paradigm North
------
Carolina shall be merged with and into Paradigm Delaware, the separate corporate
existence of Paradigm North Carolina will cease, Paradigm Delaware shall
continue as the surviving corporation under the laws of the State of Delaware
(the "Surviving Corporation"), and the issued and outstanding shares of Paradigm
North Carolina capital stock shall be converted into capital stock of Paradigm
Delaware as provided in Section 6 below, effective upon the date when the
Certificate of Merger evidencing this Agreement is filed with the Secretary of
State of the State of Delaware and Articles of Merger are filed with the
Secretary of State of the State of North Carolina (the "Effective Date").
2. Registered Office of Surviving Corporation. The registered office of the
------------------------------------------
Surviving Corporation after the Merger will be 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxx xx Xxx Xxxxxx, Xxxxxxxx; and the name of the registered agent of the
Surviving Corporation in the State of Delaware after the Merger will be The
Xxxxxxxx-Xxxx Corporation System, Inc.
3. Certificate of Incorporation. The Certificate of Incorporation of
----------------------------
Paradigm Delaware in effect immediately prior to the Merger will continue to be
the Certificate of Incorporation of the Surviving Corporation immediately after
the Merger.
4. By-Laws. The By-Laws of Paradigm Delaware in effect immediately prior to
-------
the Merger shall be the By-Laws of the Surviving Corporation immediately upon
and after the Merger, until amended as provided therein or by law.
5. Officers, Directors and Committees. Upon the Effective Date, the number
----------------------------------
of directors of the Surviving Corporation shall be fixed initially at seven (7)
directors and the officers, directors and committees of the Board of Directors
of Paradigm North Carolina immediately prior to the Merger shall be the
officers, directors and committees of the Board of Directors of the Surviving
Corporation immediately upon and after the Merger, until their respective
successors are duly elected and qualified in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Corporation.
6. Conversion of Shares.
--------------------
(a) Upon the Effective Date and without any further action on the part of the
Constituent Corporations, the single share of Common Stock of the Surviving
Corporation that is issued and outstanding on the date hereof shall be
cancelled.
(b) Subject to Article 13 of the NCBCA, upon the Effective Date, by virtue of
the Merger and without any further action on the part of the Constituent
Corporations or their
respective stockholders, (i) each share of Common Stock, $0.01 par value, of
Paradigm North Carolina issued and outstanding immediately prior to the Merger
shall automatically be converted into one fully paid and non-assessable share of
Common Stock, $0.01 par value per share, of Paradigm Delaware, (ii) each share
of Series A Preferred Stock, $0.01 par value, of Paradigm North Carolina issued
and outstanding immediately prior to the Merger shall automatically be converted
into one fully paid and non-assessable share of Series A Preferred Stock, $0.01
par value per share, of Paradigm Delaware, (iii) each share of Series B
Preferred Stock, $0.01 par value, of Paradigm North Carolina issued and
outstanding immediately prior to the Merger shall automatically be converted
into one fully paid and non-assessable share of Series B Preferred Stock, $0.01
par value per share, of Paradigm Delaware, and (iv) each share of Series C
Preferred Stock, $0.01 par value, of Paradigm North Carolina issued and
outstanding immediately prior to the Merger shall automatically be converted
into one fully paid and non-assessable share of Series C Preferred Stock, $.01
par value per share, of Paradigm Delaware.
7. Rights to Purchase Stock. Upon the Effective Date, each outstanding
------------------------
option and warrant to purchase shares of Common Stock or any series of Preferred
Stock of Paradigm North Carolina that is outstanding immediately prior to the
Effective Date shall be assumed by Paradigm Delaware and converted into and
become an option or warrant, as the case may be, to purchase the identical
number of shares of Common Stock or Preferred Stock of Paradigm Delaware, upon
the same terms and subject to the same conditions, as in effect on the Effective
Date, including such terms and conditions as are contained in the Paradigm North
Carolina 1998 Stock Option Plan. Such number of shares of Common Stock of
Paradigm Delaware shall be reserved for purposes of outstanding options or
warrants to purchase shares of Common Stock or Preferred Stock of Paradigm
Delaware as are equal to the number of shares of Common Stock or Preferred Stock
of Paradigm North Carolina so reserved as of the Effective Date. As of the
Effective Date, Paradigm Delaware hereby aXHIBIT 10.ssumes all obligations of
Paradigm North Carolina under all outstanding options and warrants to purchase
shares of Common Stock and Preferred Stock of Paradigm North Carolina.
Upon the Effective Date, by virtue of the Merger and without any further
action on the part of the Constituent Corporations or their respective
stockholders, the Paradigm North Carolina 1998 Stock Option Plan shall become
the Paradigm Delaware 1998 Stock Option Plan and the Paradigm North Carolina
2000 Employee, Director and Consultant Stock Option Plan shall become the
Paradigm Delaware 2000 Employee, Director and Consultant Stock Option Plan.
8. Stock Certificates. On and after the Effective Date, each holder of an
------------------
outstanding certificate representing shares of Paradigm North Carolina shall
surrender the same to Paradigm Delaware, and each holder shall be entitled upon
such surrender to receive certificates for the number of shares of Paradigm
Delaware stock on the basis provided herein. Until so surrendered, all of the
outstanding certificates which prior to the Effective Time represented shares of
the Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock of Paradigm North Carolina shall be deemed for all purposes to
evidence ownership of and to represent the shares of Paradigm Delaware into
which the shares of Paradigm North Carolina
represented by such certificates have been converted as herein provided and
shall be so registered on the books and records of Paradigm Delaware or its
transfer agent. The registered owner of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for exchange, transfer
or conversion or otherwise accounted for to Paradigm Delaware or its transfer
agent, have and be entitled to exercise any voting and other rights with respect
to and to receive any dividend and other distributions upon the shares of
Paradigm Delaware evidenced by such outstanding certificate as above provided.
9. Status and Rights of Surviving Corporation. Immediately after the Merger,
------------------------------------------
the Surviving Corporation shall possess all the rights, privileges and powers,
of a public as well as a private nature, of Paradigm North Carolina and all
property and assets of every type and nature, real, personal and mixed, whether
tangible or intangible, and all debts due to Paradigm North Carolina shall be
vested in the Surviving Corporation; and all and every other interest of
Paradigm North Carolina shall be thereafter the property or asset of the
Surviving Corporation as effectively as they were of Paradigm North Carolina,
and the title to any real estate, whether by deed or otherwise, vested in
Paradigm North Carolina or the Surviving Corporation, shall not revert or be in
any way impaired by reason of the Merger. Immediately after the Merger, all
rights of creditors and all liens upon any property of the parties hereto shall
be preserved unimpaired, and all debts, liabilities, obligations, and duties of
the parties hereto, including those under the Paradigm North Carolina 1998 Stock
Option Plan and 2000 Employee, Director and Consultant Stock Option Plan, shall
thenceforth attach to the Surviving Corporation, and may be enforced against the
Surviving Corporation to the same extent as if said debts, liabilities,
obligations and duties had been incurred or contracted by it.
10. Further Assurances. From time to time, as and when required by Paradigm
------------------
Delaware or by its successors and assigns including without limitation the
Surviving Corporation, there shall be executed and delivered on behalf of
Paradigm North Carolina such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest, perfect in, to conform of record or
otherwise in the Surviving Corporation the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Paradigm North Carolina and otherwise to carry out the purposes
of this Agreement, and the officers and directors of Paradigm Delaware are fully
authorized in the name and on behalf of Paradigm North Carolina or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
11. Termination. Notwithstanding the approval of this Agreement by the
-----------
stockholders of Paradigm North Carolina, this Agreement may be terminated by the
mutual consent of the Boards of Directors of the parties hereto at any time
prior to the filing of this Agreement or related Certificates of Merger or
Articles of Merger with the Secretary of State of either Delaware or North
Carolina.
12. Amendment. This Agreement may be amended by the mutual consent of the
---------
Boards of Directors of the parties hereto prior to the filing of this Agreement
or related Certificate
or Articles of Merger, subject to the restrictions of Section 251(d) of the
D.G.C.L. and applicable North Carolina Law.
13. Miscellaneous. This Agreement may be executed in several counterparts,
-------------
each of which shall be deemed an original, and all of which shall constitute one
and the same document. This Agreement constitutes the entire agreement of the
parties which respect to the subject matter hereof and supersedes any prior or
contemporaneous agreements, oral or written, relating thereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this PLAN AND
AGREEMENT OF MERGER as of the date first written above.
Attest: PARADIGM GENETICS, INC.
a North Carolina corporation
By:
------------------- ----------------------------------------
Xxxxx Xxxxx Xxxx Xxxxx,
Secretary Chief Executive Officer
(SEAL)
PARADIGM GENETICS, INC.
a Delaware corporation
By:
-------------------------------------------
Xxxx Xxxxx,
Chief Executive Officer
