AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan of Merger (this “Merger Agreement”), is
entered into as of July 13, 2007, between REIT Americas, Inc., a Maryland
corporation (“RAI”), and Virium Pharmaceuticals, Inc., a
Delaware corporation and wholly-owned subsidiary of RAI
(“Subsidiary”).
Recitals:
WHEREAS,
RAI is a corporation duly organized, validly existing and in good standing
under
the laws of the State of Maryland with authorized capital stock consisting
of
10,000,000 shares of common stock, $0.01 par value per share (the
“Maryland Common Stock”);
WHEREAS,
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with authorized capital
stock
consisting of 100,000,000 shares of common stock, $0.001 par value per
share
(the “Delaware Common Stock”), and 20,000,000 shares of
preferred stock, $0.001 par value per share;
WHEREAS,
the Board of Directors of RAI has determined that, for purposes of effecting
the
reincorporation of RAI in the State of Delaware, it is advisable and in
the best
interests of RAI and the holders of shares of Maryland Common Stock (the
“RAI Shareholders”) for RAI to merge with and into Subsidiary
upon the terms and conditions set forth herein;
WHEREAS,
the respective Boards of Directors of RAI and Subsidiary have authorized
and
approved the merger of RAI with and into Subsidiary subject to and upon
the
terms and conditions of this Merger Agreement, and have approved the terms
of
this Merger Agreement and directed that it be executed by the undersigned
officers and submitted to the RAI Shareholders and the stockholder of the
Subsidiary for their approval; and
WHEREAS,
it is the intention of RAI and Subsidiary that the merger be a tax-free
reorganization within the meaning of Section 368 of the Internal Revenue
Code of
1986, as amended (the “Code”).
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein
and
for other good and valuable consideration, the receipt and sufficiency
of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I.
THE
MERGER
Section
1.1. Merger of RAI into Subsidiary. At the Effective Time (as
defined in Section 2.1), RAI shall merge with and into Subsidiary in accordance
with the Maryland General Corporation Law (the “Maryland Law”)
and the General Corporation Law of the State of Delaware (the “Delaware
Law”).
The
separate existence of RAI shall thereupon cease and Subsidiary shall be
the
surviving corporation (hereinafter referred to as the “Surviving
Corporation”) and shall possess all the rights, privileges, powers and
franchises of a public as well as of a private nature, and be subject to
all the
restrictions, disabilities and duties of each of RAI and Subsidiary (together
referred to as the “Constituent Corporations”); and all the
rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, and all debts
due to
either of the Constituent Corporations, on whatever account, as well as
for
stock subscriptions and all other things in action or belonging to each
of the
Constituent Corporations, shall be vested in the Surviving Corporation;
and all
property, rights, privileges, powers and franchises, and all and every
other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they had been of the several and respective Constituent
Corporations, and the title to any real estate vested by deed or otherwise,
under the laws of the State of Delaware, in either of such Constituent
Corporations shall not revert or be in any way impaired by reason of the
Delaware Law; but all rights of creditors and all liens upon any property
of any
of the Constituent Corporations shall be preserved unimpaired, and all
debts,
liabilities and duties of the respective Constituent Corporations shall
thereafter attach to the Surviving Corporation and may be enforced against
it to
the same extent as if those debts, liabilities and duties had been incurred
or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of RAI, the RAI Shareholders, the Board of
Directors of RAI and committees thereof, and the officers and agents thereof
which were valid and effective immediately prior to the Effective Time,
shall be
taken for all purposes as acts, plans, policies, agreements, arrangements,
approvals and authorizations of the Surviving Corporation and shall be
as
effective and binding thereon as the same were with respect to RAI. The
employees and agents of RAI shall become the employees and agents of Subsidiary
and continue to be entitled to the same rights and benefits which they
enjoyed
as employees and agents of RAI. The requirements of any plans or agreements
of
RAI involving the issuance or purchase by RAI of certain shares of its
capital
stock shall be satisfied by the issuance or purchase of a like number of
shares
of the Surviving Corporation. The subsidiaries of RAI shall become the
subsidiaries of the Surviving Corporation.
ARTICLE
II.
EFFECTIVE
TIME; EFFECT OF MERGER
Section
2.1. Effective Time. The Merger shall become effective on the date
the Articles of Merger are filed by with the State Department of Assessment
and
Taxation of Maryland, or the date a Certificate of Ownership and Merger
is filed
with the Secretary of State of the State of Delaware, whichever filing
occurs
last (the “Effective Time”).
Section
2.2. Effects of the Merger. At the Effective Time, the Merger shall
have the effects specified in the Maryland Law, the Delaware Law and this
Merger
Agreement.
Section
2.3. Certificate of Incorporation and Bylaws. At the Effective Time,
the Certificate of Incorporation and the Bylaws of Subsidiary, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
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Section
2.4. Directors and Officers. At the Effective Time, the directors
and officers of RAI in office at the Effective Time shall retain their
positions
as the directors and officers, respectively, of the Surviving Corporation,
each
of such directors and officers to hold office, subject to the applicable
provisions of the Certificate of Incorporation and Bylaws of the Surviving
Corporation and the Delaware law, until his or her successor is duly elected
or
appointed and shall qualify, or until his or her earlier death, resignation
or
removal.
Section
2.5. Change of Name. At the Effective Time, Virium Pharmaceuticals,
Inc., the name set forth in Paragraph First of the Subsidiary’s Certificate of
Incorporation, shall be the name of the Surviving Corporation.
ARTICLE
III.
CONVERSION
AND EXCHANGE OF STOCK
Section
3.1. Conversion.
(a)
Shares. At the Effective Time, each share of Maryland Common Stock issued
and outstanding immediately prior to the Effective Time shall, by virtue
of the
merger and without any action on the part of the holder thereof, be converted
into and become one share of Delaware Common Stock. The parties
acknowledge and agree that the Effective Time shall occur following consummation
of a 23.06062 to 1 reverse stock split (the “Reverse Stock Split”) with respect
to the Maryland Common Stock and that the number of shares of Delaware
Common
Stock to be received by each holder of Maryland Common Stock shall reflect
the
effectiveness of such Reverse Stock Split.
(b)
Cancellation. At the Effective Time, each share of Delaware Common Stock
issued and outstanding immediately prior to the Effective Time and held
by RAI
shall be canceled without any consideration being issued or paid
therefor.
(c)
Stock Awards. At the Effective Time, each stock option, restricted stock
award or other stock appreciation right (each, a “Stock Award”)
of RAI then outstanding, whether vested or unvested, exercisable or
unexercisable, without any action on the part of the holder thereof shall
be
converted into a Stock Award of the Surviving Corporation with respect
to an
equivalent number of shares of Delaware Common Stock.
Section
3.2. Exchange of Certificates. At the Effective Time, stock
certificates representing Maryland Common Stock (as adjusted pursuant to
the
Reverse Stock Split) will automatically represent an equal number of shares
of
Delaware Common Stock. At any time after the Effective Time, the holders
of
Delaware Common Stock represented by certificates issued prior to the Effective
Time, will be entitled, upon request, and surrender of such certificates,
to the
Surviving Corporation, to receive in exchange therefor a new stock certificate
evidencing ownership of the same number of shares of Delaware Common Stock.
If
any new certificate 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 the issuance thereof that the certificate or other writing
so
surrendered shall be properly endorsed and otherwise in proper form for
transfer
and that the person requesting such exchange shall pay to the Surviving
Corporation or its transfer agent any transfer or other taxes required
by reason
of the issuance of a certificate representing shares of Delaware Common
Stock in
any name other than that of the registered holder of the certificate
surrendered, or otherwise required, or shall establish to the satisfaction
of
the transfer agent that such tax has been paid or is not payable.
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ARTICLE
IV.
MISCELLANEOUS
Section
4.1. Amendment. This Merger Agreement may be amended, modified or
supplemented, in whole or in part, at any time prior to the Effective Time
with
the mutual consent of the respective Boards of Directors of RAI and Subsidiary
to the full extent permitted under applicable law.
Section
4.2. Notices. All communication hereunder shall be in writing and,
sent by mail, or by facsimile as set forth below:
If
to RAI
to:
0000
X.
Xxxx Xx., Xxxxx 000
Xxxxxx,
XX 00000
with
copies to:
Blank
Rome LLP
0000
Xxxxx Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxx
Xxxxx, XX 00000
Attn:
Xxxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
If
to
Subsidiary to:
Virium
Pharmaceuticals, Inc.
0000
X.
Xxxx Xx., Xxxxx 000
Xxxxxx,
XX 00000
Section
4.3. Abandonment; Postponement. At any time prior to the Effective
Time, this Merger Agreement may be terminated and the Merger may be abandoned
by
the respective Boards of Directors of RAI or Subsidiary, or the consummation
of
the Merger may be postponed for a reasonable period of time, without any
action
of the RAI Shareholders or stockholders of Subsidiary, notwithstanding
the
approval of this Merger Agreement by the RAI Shareholders or Board of Directors
of either RAI or Subsidiary.
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Section
4.4. Further Assurances. If at any time after the Effective Time of
the Merger, the Surviving Corporation shall consider that any assignments,
transfers, deeds or other assurances in law are necessary or desirable
to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation,
title
to any property or rights of RAI, RAI and its directors and officers holding
office at the Effective Time shall execute and deliver such documents and
do all
things necessary and proper to vest, perfect or confirm title to such property
or rights in the Surviving Corporation, and the officers and directors
of the
Surviving Corporation are fully authorized in the name of RAI or otherwise
to
take any and all such action.
Section
4.5. Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
and all
of which together shall be deemed to be one and the same instrument. In
the
event that any signature is delivered by facsimile or other means of electronic
image transmission, such signature shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed)
with the
same force and effect as if such facsimile or electronically transmitted
signature page were an original thereof.
Section
4.6. Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws of such state.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the parties to this Merger Agreement have executed this
Merger
Agreement on and as of the day first written above.
| REIT AMERICAS, INC. | ||
|
By:
|
/s/ F. Xxxx Xxxxxxx | |
| Name: F. Xxxx Xxxxxxx | ||
| Title: President | ||
| VIRIUM PHARMACEUTICALS, INC. | ||
|
By:
|
/s/ F. Xxxx Xxxxxxx | |
| Name: F. Xxxx Xxxxxxx | ||
| Title: President | ||
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