EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of September 29, 2005 (the
"Agreement), is made by and between Xxxxxxxx Optical Corp., a New Jersey
corporation ("Xxxxxxxx"), and Somanta Pharmaceuticals, Inc., a Delaware
corporation ("Somanta"). Xxxxxxxx and Somanta are sometimes referred to herein
as the "Constituent Corporations."
RECITALS
A. Somanta is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital of
120,000,000 shares, 100,000,000 shares of which are Common Stock, $0.001 par
value per share, and 20,000,000 shares of which are Preferred Stock, $0.001 par
value per share. As of the date hereof, 100 shares of Common Stock of Somanta
were issued and outstanding, all of which were held by Xxxxxxxx, and no shares
of Preferred Stock were issued and outstanding.
X. Xxxxxxxx is a corporation duly organized and existing
under the laws of the State of New Jersey and has an authorized capital of
100,000,000 shares of Common Stock, $.001. As of the date hereof, 41,588,235
shares of Common Stock of Xxxxxxxx were issued and outstanding (the "Xxxxxxxx
Common Stock").
C. The Board of Directors of Xxxxxxxx has determined
that, for the purpose of effecting the reincorporation of Xxxxxxxx in the State
of Delaware, it is advisable and in the best interests of Xxxxxxxx and its
shareholders that Xxxxxxxx merge with and into Somanta upon the terms and
conditions herein provided.
D. The respective Boards of Directors of Somanta and
Xxxxxxxx have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and shareholders and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Somanta and Xxxxxxxx hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
ARTICLE I
MERGER
1. Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the New Jersey Business Corporation
Act, Xxxxxxxx shall be merged with and into Somanta (the "Merger"), the separate
existence of Xxxxxxxx shall cease and Somanta shall survive the Merger and shall
continue to be governed by the laws of the State of Delaware. Somanta shall be,
and is herein sometimes referred to as, the "Surviving Corporation." The name of
the Surviving Corporation shall be "Somanta Pharmaceuticals, Inc."
a. Filing and Effectiveness. The Merger shall become
effective when the following actions shall have been completed: (i) this
Agreement and the Merger shall have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the requirements
of the Delaware General Corporation Law and the New Jersey Business Corporation
Act; (ii) all of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof; (iii) an executed Certificate of Merger
or an executed counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware; and (iv) an executed Certificate of Merger or an
executed counterpart of this Agreement meeting the requirements of the New
Jersey Business Corporation Act shall have been filed with the Secretary of
State of the State of New Jersey. The date and time when the Merger shall become
effective, as aforesaid, is herein called the "Effective Date of the Merger."
b. Effect of Merger. Upon the Effective Date of the
Merger, the separate existence of Xxxxxxxx shall cease and Somanta, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
Xxxxxxxx'x Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of Xxxxxxxx in the manner more
fully set forth in Section 259 of the Delaware General Corporation Law, (iv)
shall continue to be subject to all of the debts, liabilities and obligations of
Xxxxxxxx as constituted immediately prior to the Effective Date of the Merger,
and (v) shall succeed, without other transfer, to all of the debts, liabilities
and obligations of Xxxxxxxx in the same manner as if Somanta had itself incurred
them, all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the New Jersey Business Corporation Act.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
1. Certificate of Incorporation. The Certificate of Incorporation
of Somanta as in effect immediately prior to the Effective Date of the Merger, a
copy of which is attached hereto as Exhibit A, shall continue in full force and
effect as the Certificate of Incorporation of the Surviving Corporation until
duly amended in accordance with the provisions thereof and applicable law.
2. Bylaws. The Bylaws of Somanta as in effect immediately prior
to the Effective Date of the Merger, a copy of which is attached hereto as
Exhibit B, shall continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
3. Directors and Officers. The directors and officers of Xxxxxxxx
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
duly elected and qualified or until as otherwise provided by law, or the
2
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
1. Xxxxxxxx Common Stock. Upon the Effective Date of the Merger,
each share of Xxxxxxxx Common Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted into
and exchanged for .01305340 shares of fully paid and non-assessable shares of
common stock, $0.001 par value per share, of the Surviving Corporation, provided
that no fractional shares shall be issued as a result of such conversion and
exchange, but in lieu of such issuance of a fractional share, each record holder
of a certificate representing Xxxxxxxx Common Stock on the Effective Date of the
Merger shall be issued fifty (50) additional shares of common stock of the
Surviving Corporation; provided, further however, that the fractional share
interest of each such record holder shall be aggregated such that no holder of a
certificate or certificates representing Xxxxxxxx Common Stock shall receive
more than fifty (50) shares of common stock of the Surviving Corporation with
respect to any interest in fractional shares.
2. Somanta Common Stock. Upon the Effective Date of the Merger,
each share of Somanta Common Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by Somanta, the
holder of such shares or any other person, be cancelled and returned to the
status of authorized but unissued shares.
3. Exchange of Certificates. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of
Xxxxxxxx Common Stock may, at such shareholder's option, surrender the same for
cancellation to Olde Monmouth Stock Transfer Co., Inc., as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's common stock into which the surrendered shares were
converted as set forth in Article III Section 1 above. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of
Xxxxxxxx Common Stock shall be deemed for all purposes to represent the number
of shares of the Surviving Corporation's Common Stock into which such shares of
Xxxxxxxx Common Stock were converted in the Merger as set forth in Article III
Section 1 above. The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of common stock of the Surviving Corporation
represented by such outstanding certificate as provided above. Each certificate
representing common stock of the Surviving Corporation so issued in the Merger
shall bear the same legends, if any, with respect to the restrictions on
transferability as the certificates of Xxxxxxxx so converted and given in
exchange therefore, unless otherwise determined by the Board of Directors of the
Surviving Corporation in compliance with applicable laws, or other such
3
additional legends as agreed upon by the holder and the Surviving Corporation.
If any certificate for shares of Surviving Corporation common stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
Somanta or the Exchange Agent any transfer or other taxes payable by reason of
issuance of such new certificate in a name other than that of the registered
holder of the certificate surrendered or established to the satisfaction of
Somanta that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
1. Covenants of Somanta. Somanta covenants and agrees that it
will, on or before the Effective Date of the Merger: (a) file any and all
documents with the State of New Jersey necessary for the assumption by Somanta
of all of the franchise tax liabilities of Xxxxxxxx; and (b) take such other
actions as may be required by the New Jersey Business Corporation Act.
2. Further Assurances. From time to time, as and when required by
Somanta or by its successors or assigns, there shall be executed and delivered
on behalf of Xxxxxxxx such deeds and other instruments, and there shall be taken
or caused to be taken by Somanta and Xxxxxxxx such further and other actions as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by Somanta the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Xxxxxxxx and otherwise to carry out the purposes of this Agreement,
and the officers and directors of Somanta are fully authorized in the name and
on behalf of Xxxxxxxx or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
3. Abandonment. At any time before the Effective Date of the
Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Xxxxxxxx or of Somanta, or
of both, notwithstanding the approval of this Agreement by the shareholders of
Xxxxxxxx or the sole stockholder of Somanta, or both.
4. Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of Delaware and New Jersey, provided that an amendment made subsequent to
the adoption of this Agreement by the shareholders of either Constituent
Corporation shall not: (a) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
allow or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of any Constituent Corporation.
4
5. Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at 000 Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000.
6. Governing Law. This 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 the
New Jersey Business Corporation Act.
7. Counterparts. In order to facilitate the filing and recording
of this Agreement, the same may be executed in two counterparts, by facsimile,
or both, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties hereto executed this Agreement as of
the day and year first written above.
XXXXXXXX OPTICAL CORP.
By: /s/ XXXXXXXX XXXXXXXX
-------------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
-----------------------------
Title: President
----------------------------------
SOMANTA PHARMACEUTICALS, INC.
By: /s/ XXXXXXXX XXXXXXXX
-------------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
-----------------------------
Title: President
----------------------------------
6
EXHIBIT A
CERTIFICATE OF INCORPORATION
EXHIBIT B
BYLAWS
