AGREEMENT
AND PLAN OF MERGER
BETWEEN
UNIVEC, INC.
(a New York Corporation)
AND
UNIVEC, INC.
(a Delaware Corporation)
Agreement and Plan of Merger (the "Agreement"), dated as of October 7,
1996, between UNIVEC, Inc., a New York corporation ("UNIVEC") and UNIVEC, Inc.,
a newly-formed Delaware corporation and a wholly-owned subsidiary of UNIVEC (the
"Surviving Corporation").
A. UNIVEC is a corporation duly organized and existing under the laws of
the State of New York and has an authorized capital of 200 common
shares, without par value ("New York Common Shares"). As of the date
hereof, 103.3526 New York Common Shares are issued and outstanding and
entitled to one vote per share.
B. The Surviving Corporation is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital
of 25,000,000 shares of common stock, $.001 par value ("Delaware
Common Stock"), and 5,000,000 shares of Preferred Stock, $.001 par
value ("Delaware Preferred Stock"). As of the date hereof, 100 shares
of Delaware Common Stock are issued and outstanding and entitled to
one vote per share, and no shares of Delaware Preferred Stock are
issued and outstanding.
C. The Board of Directors of UNIVEC has determined that, for the purpose
of effecting the reincorporation of UNIVEC in the State of Delaware,
it is advisable that UNIVEC merge with and into the Surviving
Corporation upon the terms and conditions herein provided and in
accordance with the laws of the States of New York and Delaware.
D. The respective Boards of Directors of UNIVEC and the Surviving
Corporation have approved this Agreement and have directed that this
Agreement be submitted to a vote of the shareholders of UNIVEC.
NOW THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, UNIVEC and the Surviving Corporation hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
ARTICLE I
MERGER
1.1 Merger. Subject to the terms and conditions of this Agreement, UNIVEC
shall be merged with and into the Surviving Corporation in accordance with the
New York Business Corporation Law (the "NYBCL") and the General Corporation Law
of the State of Delaware (the "DGCL")(the "Merger").
The separate existence of UNIVEC shall cease, and the Surviving Corporation
shall be the surviving corporation and continue its corporate existence under
the laws of the State of Delaware. Thereafter, without further action, the
Surviving Corporation shall succeed, insofar as permitted by law, to all the
rights, assets, privileges, franchises, liabilities and obligations of UNIVEC.
1.2 Filing and Effectiveness. The Merger shall become effective upon the
completion of the following actions:
(a) This Agreement and the Merger shall have been approved by the
shareholders of UNIVEC in accordance with the provisions of the NYBCL;
(b) 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;
(c) An executed Certificate of Merger, in the form attached hereto as
Exhibit A, meeting the requirements of the DGCL or an executed
counterpart of this Agreement shall have been filed with the Secretary
of State of Delaware on behalf of the Surviving Corporation; and
(d) An executed Certificate of Merger, in the form attached hereto as
Exhibit B, meeting the requirements of the NYBCL shall have been filed
with the Secretary of State of New York on behalf of UNIVEC.
The date and time when the Merger shall become effective, as set forth
above, is hereinafter referred to as the "Effective Date."
1.3 Certificate of Incorporation. The Certificate of Incorporation of the
Surviving Corporation, attached hereto as Exhibit C, in effect immediately prior
to the Effective Date 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, and the name of the Surviving
Corporation shall be UNIVEC, Inc.
1.4 By-laws. The By-laws of the Surviving Corporation in effect immediately
prior to the Effective Date shall continue in full force and effect as the
By-laws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
1.5 Directors and Officers. The directors and officers of the Surviving
Company immediately prior to the Effective Date shall continue as the directors
and officers of the Surviving Corporation until their successors shall have been
elected or until otherwise provided by law, the Certificate of Incorporation of
the Surviving Corporation or the By-laws of the Surviving Corporation.
1.6 Effect of Merger. Upon the Effective Date, the separate existence of
UNIVEC shall cease and the Surviving Corporation, 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, shall be subject to all
actions previously taken by its and UNIVEC's Board of Directors and shall
succeed, without other transfer, to all of the assets, rights, powers and
property of UNIVEC in the manner and as more fully set forth in Section 259 of
the DGCL, and (i) shall continue to be subject to all of its debts, liabilities
and obligations as constituted immediately prior to the Effective Date and
succeed, without other transfer, to all of the debts, liabilities and
obligations of UNIVEC in the same manner as if the Surviving Corporation had
incurred them, all as more fully provided under the applicable provisions of the
DGCL and the NYBCL.
ARTICLE II
MANNER OF CONVERSION OF STOCK
2.1 Outstanding Stock of UNIVEC. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each New York
Common Share outstanding immediately prior thereto shall be changed and
converted into 10,256.3954 fully paid and nonassessable share of common stock of
the Surviving Corporation, $.001 par value, with any fractional shares issuable
to a registered owner of New York Common Shares in the aggregate to be rounded
up to the nearest whole share.
2.2 Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which, prior to that time,
represented New York Common Shares shall be deemed for all purposes to evidence
ownership of and to represent the shares of Delaware Common Stock into which the
New York Common Shares represented by such certificates have been converted as
provided for in this Agreement. The registered owner on the books and records of
UNIVEC or its transfer agent of any such outstanding stock certificate shall,
until such certificate shall have been surrendered for transfer or otherwise
accounted for the Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting rights with respect to, and to receive any
dividend and other distributions upon, the shares of Delaware Common Stock
evidenced by such outstanding certificate as provided above.
2.3 Warrants, Options. Upon the Effective Date, each outstanding option,
warrant or other right to purchase New York Common Shares shall be converted
into and become an option, warrant or right to purchase a number of shares of
Delaware Common Stock equal to the product of 10,256.3954 and the number of New
York Common Shares purchasable upon exercise thereof at a price per share equal
to the quotient resulting from dividing the price as in effect at the Effective
Date by 10,256.3954 (with fractional shares issuable in the aggregate to each
holder thereof to be rounded up to the nearest whole number), and upon the same
terms and subject to the same conditions as set forth in the agreements entered
into by UNIVEC pertaining to such option, warrant or right. The Surviving
Corporation shall reserve a number of shares of Delaware Common Stock for
purposes of such options, warrants and rights sufficient to allow the exercise
thereof.
2.4 Outstanding Common Stock of the Surviving Corporation. Upon the
Effective Date, the 100 shares of Delaware Common Stock issued and outstanding
in the name of UNIVEC shall be cancelled and retired and resume the status of
authorized and unissued shares of Delaware Common Stock, and no shares of
Delaware Common Stock or other securities of the Surviving Corporation shall be
issued in respect thereof.
ARTICLE III
COVENANTS OF The Surviving Corporation
The Surviving Corporation covenants and agrees that, upon or before the
Effective Date:
(a) it will qualify to do business as a foreign corporation in the State of
New York;
(b) it may be served with process in the State of New York in any
proceeding for the enforcement of any obligation of UNIVEC or the Surviving
Corporation and irrevocably appoints the Secretary of State to accept service of
process in any such proceeding and directs the Secretary of State to mail a copy
of
the process in such proceeding to UNIVEC, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxx 00000; and
(c) it will file any and all documents with the State of New York necessary
for the assumption by the Surviving Corporation of UNIVEC's tax liabilities to
the State of New York.
ARTICLE IV
GENERAL
4.1 Termination and Abandonment. At any time prior to the Effective Date,
this Agreement may be terminated and the Merger abandoned by the respective
Board of Directors of UNIVEC or the Surviving Corporation if (a) the submission
to the shareholders specified in Article I hereof shall not have been satisfied
or waived by the respective Board of Directors of UNIVEC or the Surviving
Corporation, or (b) the respective Board of Directors if either UNIVEC or the
Surviving Corporation determines that in its sole discretion the Merger does not
appear to be in the best interests of either of the two corporations or their
respective shareholders or is otherwise not advisable.
4.2 Amendment. This Agreement may be amended, modified, supplemented or
abandoned at any time (before or after shareholder approval) prior to the
Effective Date with the mutual consent of the Boards of Directors of UNIVEC and
the Surviving Corporation; provided, however, that this Agreement may not be
amended, modified or supplemented after it has been approved by the shareholders
of UNIVEC in any manner which, in the judgment of the Board of Directors of
UNIVEC, would have a material adverse effect on the rights of such shareholders
or in any manner not permitted under applicable law.
4.3 Headings. The headings set forth herein are inserted for convenience or
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
4.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which, when
taken together, shall constitute one and the same instrument.
4.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, except to the extent that the
laws of the State of New York shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf and attested by its officers hereunto duly authorized,
all as of the date and year
first above written.
UNIVEC, INC.
(New York)
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Xxxxx Xxxxxxxxxx
---------------------
Xxxxx Xxxxxxxxxx
Secretary
UNIVEC, INC.
(Delaware)
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Xxxxx Xxxxxxxxxx
---------------------
Xxxxx Xxxxxxxxxx
Secretary
Exhibit A
CERTIFICATE OF MERGER
UNIVEC INC.
(a New York Corporation)
AND
UNIVEC, INC.
(a Delaware Corporation)
It is hereby certified that:
1. The constituent corporations participating in the merger herein are:
(a) UNIVEC Inc. ("UNIVEC"), which is incorporated under the laws of
the State of New York; and
(b) UNIVEC, INC. (the "Surviving Corporation"), a wholly-owned
subsidiary of UNIVEC, which is incorporated under the laws of the State of
Delaware.
2. An Agreement and Plan of Merger has been approved, adopted, certified,
executed, and acknowledged by each of the aforesaid constituent corporations in
accordance with the provisions of subsection (c) of Section 252 of the General
Corporation Law of the State of Delaware (the "GCL"), to wit, by UNIVEC in
accordance with the laws of the state of its incorporation and by the Surviving
Corporation in the same manner as is provided in Section 251 of the GCL.
3. The name of the Surviving Corporation in the merger herein certified is
UNIVEC, Inc., which will continue its existence as the Surviving Corporation
upon the effective date of said merger pursuant to the provisions of the GCL.
4. The Certificate of Incorporation of the Surviving Corporation, as now in
force and effect, shall continue to be the Certificate of Incorporation of the
Surviving Corporation until amended and changed pursuant to the provisions of
the GCL.
5. The executed Agreement and Plan of Merger between the aforesaid
constituent corporations is on file at the principal place of business of the
Surviving Corporation, the address of which is as follows:
UNIVEC, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
6. A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation, on request, and without cost, to any stockholder of each
of the constituent corporations.
7. The authorized capital stock of UNIVEC consists of 200 shares of Common
Stock, without par value.
Dated: October 7, 1996
UNIVEC, Inc. (a New York corporation)
("UNIVEC")
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
Dated: October 7, 1996
UNIVEC, Inc. (a Delaware corporation)
(the Surviving Corporation)
By: /s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
2
Exhibit B
CERTIFICATE OF MERGER
of
UNIVEC INC.
(a New York Corporation)
into
UNIVEC, INC.
(a Delaware Corporation)
(Under Section 907 of the Business Corporation Law)
It is hereby certified, upon behalf of each of the constituent corporations
herein named, as follows:
FIRST: The Board of Directors of each of the constituent corporations has
duly adopted a plan of merger setting forth the terms and conditions of the
merger of said corporations.
SECOND: The name of the foreign constituent corporation, which is to be the
surviving corporation, and which is hereinafter referred to as the "Surviving
Corporation", is UNIVEC, Inc. The jurisdiction of its incorporation is Delaware;
and the date of its incorporation therein is October 4, 1996.
No Application for Authority in the State of New York of the Surviving
Corporation to transact business as a foreign corporation therein was filed by
the Department of State of the State of New York; and it is not to do business
in the State of New York until an Application for Authority shall have been
filed by the Department of State of the State of New York.
THIRD: The name of the domestic constituent corporation, which is being
merged into the Surviving Corporation, and which is hereinafter referred to as
the "Merged Corporation", is UNIVEC Inc., which is the sole stockholder of the
Surviving Corporation. The date upon which the Merged Corporation's certificate
of incorporation was filed by the Department of State was August 18, 1992.
FOURTH: As to each constituent corporation, the plan of merger sets forth
the designation and number of outstanding shares of each class and series, the
specification of the classes and series entitled to vote on the plan of merger,
and the specification of each class and series entitled to vote as a class on
the plan of merger, as follows:
UNIVEC, INC.
(the Surviving Corporation)
Designation of Number of Designation Classes and
each outstanding outstanding of class and series entitled
class and series shares of series enti- to vote as a
of shares each class tled to vote class
---------------- ----------- ------------ -----
Common Stock 100 Common Stock Common Stock
UNIVEC INC.
(the Merged Corporation)
Designation of Number of Designation Classes and
each outstanding outstanding of class and series entitled
class and series shares of series enti- to vote as a
of shares each class tled to vote class
---------------- ----------- ------------ -----
Common Stock 103.3526 Common Stock Common Stock
FIFTH: The merger herein certified was authorized in respect of the Merged
Corporation by the vote of the holders of at least two-thirds of all outstanding
shares of the corporation entitled to vote on the plan of merger under the
certificate of incorporation. No class of stock of the Merged Corporation is
denied voting power in its certificate of incorporation.
SIXTH: The merger herein certified is permitted by the laws of the State of
Delaware, the jurisdiction of incorporation of the Surviving Corporation, and is
in compliance with said laws.
SEVENTH: The Surviving Corporation agrees that it may be served with
process in the State of New York in any action or special proceeding for the
enforcement of any liability or obligation of the Merged Corporation, for the
enforcement of any liability or obligation of the Surviving Corporation for
which the Surviving Corporation is previously amenable to suit in the State of
New York, and for the enforcement, as provided in the Business Corporation Law
of the State of New York ("BCL"), of the right of shareholders of the Merged
Corporation to receive payment for their shares against the Surviving
Corporation.
EIGHTH: The Surviving Corporation agrees that, subject to the provisions of
section 623 of the BCL, it will promptly pay to the shareholders of the Merged
Corporation the amount, if any, to which they shall be entitled under the
provisions of the BCL relating to the rights of shareholders to receive payment
for their shares.
NINTH: The Surviving Corporation hereby designates the Secretary of State
of the State of New York as its agent upon whom process against it may be served
in the manner set forth in paragraph (b) of section 306 of the BCL in any action
or special proceeding. The post office address outside the State of New York to
which the Secretary of State shall mail a copy of any process against the
Surviving Corporation served upon him is:
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, we have subscribed this document on the date set forth
below and do hereby affirm, under the penalties of perjury, that the statements
contained herein have been examined by us and are true and correct.
Dated: October , 1996
UNIVEC, INC.
(the Surviving Corporation)
By: /s/ Xxxx Xxxxxxxxxx
---------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxx Xxxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxxx
Secretary
UNIVEC, INC.
(the Merged Corporation)
By: /s/ Xxxx Xxxxxxxxxx
---------------------------
Xxxx Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxx Xxxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxxx
Secretary
