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MERGER AGREEMENT
THIS MERGER AGREEMENT ("Merger Agreement") is made and entered into as
of the 10th day of June 1994 by and between TECHNICLONE INTERNATIONAL
CORPORATION, a California corporation ("Company"), and CANCER BIOLOGICS
INCORPORATED, a California corporation ("CBI").
R E C I T A L S :
A. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and has full
corporate powers and authority to carry on its business as presently conducted
and to enter into this Agreement.
B. CBI is a corporation duly organized, validly existing and in
good standing under the laws of California and has full corporate power and
authority to carry on its business as presently conducted and to enter into this
Agreement.
C. The respective boards of directors of Company and CBI deem it
advisable and in the best interests of Company and CBI and their respective
shareholders that CBI be merged with and into Company as authorized by the
provisions of this Merger Agreement and the laws of the State of California, and
each such board of directors has duly approved this Merger Agreement. The
Company, as the corporation surviving such merger, is hereinafter sometimes
referred to as the "Surviving Corporation."
D. The shareholders of CBI have duly approved, in accordance with
the applicable laws of the State of California, the principal terms and
provisions of (i) the Agreement and Plan of Merger dated January 18, 1994
between CBI and Company providing for certain representations, warranties,
covenants and conditions in connection with the merger (the "Agreement") and
(ii) this Merger Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein set forth and for the purpose of prescribing the
terms and conditions of such merger, the parties hereto agree as follows:
1. MERGER
CBI shall be merged into the Company, and the separate
existence of CBI shall cease upon consummation of the merger at the effective
time thereof (as defined in Section 2 hereof).
2. EFFECTIVE TIME
The merger shall become effective (the "Effective Time") at
the time of the filing, in the office of the Secretary of State of the State of
California, of an executed copy of this Agreement and all requisite accompanying
certificates.
EXHIBIT 3.1(b) 19
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3. NAME OF SURVIVING CORPORATION
At the Effective Time, the name of the Surviving Corporation
shall be Techniclone International Corporation.
4. ARTICLES OF INCORPORATION
The Articles of Incorporation of Company, as in effect
immediately prior to the Effective Time of the merger, shall continue in effect
as the Articles of Incorporation of the Company following the merger.
5. BYLAWS
The Bylaws of the Company, as in effect immediately prior to
the Effective Time of the merger, shall continue in effect as the Bylaws of
Company after the merger.
6. OFFICERS AND DIRECTORS
(a) The officers of the Company and CBI immediately prior
to the effectiveness of the merger shall, at the Effective Time, continue as
officers of Company, with appropriate changes in titles to eliminate
duplication.
(b) At the Effective Time, the directors of Company,
prior to the merger, shall continue in their positions as directors of Company.
(c) The directors of the Company shall serve until
removed as provided by law or until the election of their respective successors.
Any vacancy existing on the board of directors of the Company, after the
Effective Time of the merger, shall be filled in the manner provided by the
Bylaws of the surviving corporation.
7. CONVERSION OF SHARES
(a) Each share of CBI Common Stock outstanding
immediately prior to the Effective Time of the merger, and all rights with
respect thereto, shall, by virtue of the merger and without any action on the
part of the holder thereof or any other person, be cancelled and cease to exist
as a share of CBI, and shall be converted into the right to receive one share of
fully paid and nonassessable Common Stock of the Company, without par value,
except for shares of CBI Company Stock held by Company, which shall be cancelled
at the Effective Time.
(b) Each holder of a certificate representing shares of
CBI Common Stock, other than Company, shall, upon presentation of such
certificate for surrender to Company be entitled to receive in exchange
therefor, a certificate or certificates representing the number of shares of
Company Common Stock to which such holder shall be entitled as aforesaid. Until
so surrendered, each outstanding certificate which prior to the merger
represented shares of CBI Common Stock shall be deemed, for all corporate
purposes, to evidence ownership of the number of shares of Company Common Stock
into which such shares of CBI Common Stock have been converted pursuant to
paragraph 7(a) above, except that the holder thereof shall not be entitled to
exercise any rights of a shareholder of Company until such certificate shall be
surrendered. No dividends declared with
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respect to such Company shares shall be paid to the holder of any unsurrendered
certificate of CBI Common Stock until such holder shall surrender such
certificate as aforesaid, at which time the holder shall be paid the amount of
dividends, if any, without interest, which theretofore became payable with
respect to the shares of Company Common Stock exchangeable for the shares of CBI
Common Stock evidenced by such certificate. Shares of Company Common Stock shall
be issued to the holders of lost or destroyed shares of CBI upon presentation to
Company of such evidence of ownership and agreement of indemnity as Company may
reasonably require.
(c) The stock transfer books of CBI pertaining to CBI
Common Stock outstanding at the Effective Time of the merger shall be closed at
the Effective Time of the merger and thereafter no transfer of any such shares
of CBI Common Stock shall be recorded thereon. In the event a transfer of
ownership of shares of CBI Common Stock is not recorded on the stock transfer
books of CBI, a certificate or certificates representing the number of whole
shares of Company Common Stock into which such shares of CBI Common Stock shall
have been converted in connection with the merger may be issued to the
transferee of such shares of CBI Common Stock if on surrender thereof such
certificate is accompanied by all documents deemed necessary by Company to
evidence and effect such transfer of ownership of shares of CBI Common Stock and
by the payment of any applicable stock transfer tax with respect to such
transfer.
(d) The shares of Company Common Stock outstanding
immediately prior to the Effective Time of the merger shall remain outstanding
and shall not be affected by the consummation of the merger.
8. EMPLOYEE STOCK OPTIONS
At the Effective Time, the Company will assume CBI's option
plan entitled Incentive Stock Option, Nonqualified Stock Option and Restricted
Stock Purchase Plan - 1987 (the "Plan), and all of the obligations thereunder,
including each of the outstanding stock options previously granted under the
Plan (each such option existing immediately prior to the Effective Time being an
"Existing Option" and each such option so assumed by the Company being called an
"Assumed Option"), by which such assumption the optionee shall have the right to
purchase one share of Company Common Stock for each share of Common Stock of CBI
the optionee was entitled to purchase under such Existing Option. Each Assumed
Option, subject to such modifications as may be required, shall constitute a
continuation of the Existing Option substituting the Company for CBI. The price
per share of Company Common Stock at which the Assumed Option (or any
installment) may be exercised shall be the same price as applicable to the
purchase of the CBI Common Stock pursuant to the Existing Option and all other
terms and conditions applicable to the Assumed Options shall, except as herein
provided, be unchanged. Each option granted under the Plan from and after the
Effective Time shall evidence a right to purchase shares of Common Stock of the
Company, rather than of CBI, and the Plan shall be so modified, otherwise that
Plan shall remain unchanged.
9. TRANSFER OF ASSETS
Under the provisions of this Agreement, Company shall continue
in existence and shall succeed, without the necessity of any other transfer, to
all the rights, privileges, powers and franchises of CBI and the properties of
CBI, real, personal and mixed, and shall be subject to all of the debts and
liabilities of CBI in the same manner as if it had itself incurred them.
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10. TERMINATION
This Agreement may be abandoned at any time before or after
adoption or approval thereof by the outstanding shares of CBI, but not after the
Effective Time of the merger and only by the consent of the respective boards of
directors of CBI and Company. This Merger Agreement shall automatically be
terminated if prior to the Effective Time of the merger, the Agreement is
terminated in accordance with Section 4.2 thereof.
11. OTHER PROVISIONS WITH RESPECT TO THE MERGER
(a) The Company and CBI, by mutual consent of their
respective boards of directors, to the extent permitted by law, may amend,
modify, supplement and interpret this Merger Agreement in such manner as may be
mutually agreed upon by them in writing at any time and, in the case of an
interpretation, the actions of such boards of directors shall be binding;
provided, however, that no amendment, modification or supplement shall affect
the rights of the shareholders of either CBI or Company in any manner which is
materially adverse to such shareholders in the judgment of such respective
boards of directors.
(b) If at any time after the Effective Time of the merger
Company shall consider or be advised that any further assignment or assurance in
law or other action is necessary or desirable to vest, perfect or confirm, of
record or otherwise, in Company the title to any property or rights of either of
CBI acquired or to be acquired as a result of the merger, the proper officers
and directors of CBI immediately prior to the Effective Time of the merger shall
be, and they hereby are, severally and fully authorized to execute and deliver
such deeds, assignments and assurances in law and to take such other actions as
may be necessary or proper in the name of CBI to vest, perfect or confirm title
to such property or rights in Company, the surviving corporation, and otherwise
to carry out the purposes of this Merger Agreement.
(c) The captions of this Merger Agreement are for
convenience of reference only and shall not restrict or modify the meaning of
any terms or provisions hereof.
(d) Whenever the context of this Merger Agreement
requires, the gender of all words used herein shall include the masculine,
feminine and neuter, and the number of all words shall include the singular and
plural.
(e) Unless otherwise provided in the Agreement or this
Merger Agreement, the terms and provisions of this Merger Agreement shall govern
in the event of any conflict between the terms and provisions of the Agreement
and this Merger Agreement.
(f) This Merger Agreement may be executed in
counterparts, each of which when so executed shall be deemed an original and
such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, CBI and Company, pursuant to approval and authority
duly given by resolutions adopted by their respective boards of directors, have
each caused this Merger Agreement to be executed by its Chairman of the Board or
President.
TECHNICLONE INTERNATIONAL
CORPORATION, a California corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx, Chairman of the Board
/s/ X.X Xxxxxxx
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X.X. Xxxxxxx, Assistant Secretary
CANCER BIOLOGICS INCORPORATED, a
California corporation
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx, President
/s/ X.X Xxxxxxx
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X.X. Xxxxxxx, Assistant Secretary
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