AGREEMENT AND PLAN OF MERGER
EXHIBIT
10.9
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of August 14, 2006, is made and
entered into by and between Catalyst Pharmaceutical Partners, Inc., a Florida corporation
(“Parent”) and Catalyst Pharmaceutical Partners, Inc., a Delaware corporation (“Subsidiary”).
RECITALS
| 1. | Parent is a corporation organized and existing under the laws of the State of Florida. | ||
| 2. | Subsidiary is a corporation organized and existing under the laws of the State of Delaware. | ||
| 3. | Parent and Subsidiary and their respective boards of directors deem it advisable and in the best interest of both corporations and their respective stockholders to merge Parent with and into Subsidiary pursuant to the provisions of the Florida Business Corporation Act (the “FBCA”) and the Delaware General Corporation law (the “DGCL”), upon the terms and conditions hereinafter set forth. |
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereunto agree that the Parent shall be merged with and into Subsidiary
(the “Merger”) upon the terms and conditions hereinafter set forth.
Article 1. PRINCIPAL TERMS OF THE MERGER
Section 1.1. Merger. At the Effective Time (as defined in Section 4.1 hereof), Parent
shall be merged with and into Subsidiary, the separate existence of Parent shall cease and
Subsidiary (following the Merger referred to as the “Surviving Corporation”) shall operate under
the name “Catalyst Pharmaceutical Partners, Inc.” by virtue of, and shall be governed by, the law
of the state of Delaware. The address of the registered office of the Surviving Corporation in the
State of Delaware shall be the registered office in Delaware of the Subsidiary.
Section 1.2. Certificate of Incorporation of the Surviving Corporation. The
Certificate of Incorporation of the Surviving Corporation shall be the Certificate of Incorporation
of the Subsidiary as in effect at the Effective Time hereof without change unless and until amended
in accordance with its terms and with applicable law.
Section 1.3. Bylaws of the Surviving Corporation. The Bylaws of the Surviving
Corporation shall be the Bylaws of the Subsidiary in effect at the Effective Time without change
unless and until amended or repealed in accordance with its terms and with applicable law.
Section 1.4. Directors and Officers. At the Effective Time of the Merger, the
directors and officers of the Subsidiary in office at the Effective Time of the Merger shall become
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
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Bylaws of the Surviving Corporation and the DGCL, until his or her successor is duly elected
or appointed and qualified.
Article 2. CONVERSION, CERTIFICATES AND PLANS
Section 2.1. Conversion of Shares. At the Effective Time of the Merger: (i) each
share of the Parent’s Common Stock, par value $0.01 per share, issued and outstanding immediately
prior to the Effective Time of the Merger shall, by virtue of the Merger, be converted into the
right to receive one validly issued, fully paid and nonassessable share of the Surviving
Corporation’s Common Stock, $0.001 per value per share, (ii) each share of the Parent’s Series A
Preferred Stock and Series B Preferred Stock issued and outstanding immediately prior to the
Effective Time of the Merger shall, by virtue of the Merger, be converted into the right to receive
one validly issued and fully paid and nonassessable shares of the Surviving Corporation’s Series A
Preferred Stock and Series B Preferred Stock, as the case may be, and (iii) each Common Stock
purchase option to purchase shares of the Parent’ common Stock issued and outstanding immediately
prior to the Effective Time of the Merger shall, by virtue of the Merger, be converted into the
right to receive a Common Stock purchase option to purchase shares of the Surviving Corporation’s
Common Stock. Additionally, each share of the Subsidiary’s common stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by the Parent shall be canceled
without any consideration being issued or paid therefor.
Section 2.2. Stock Certificates. At the Effective Time of the Merger, each
certificate theretofore representing issued and outstanding shares of the Parent’s Common Stock,
Series A Preferred Stock and Series B Preferred Stock will be exchanged for a certificate
representing the same number of shares of the Surviving Corporation’s Common Stock, Series A
Preferred Stock and Series B Preferred Stock.
Section 2.3. Employee Benefit and Compensation Plans. At the Effective Time of the
Merger, each employee benefit plan, incentive compensation plan and other similar plans to which
the Parent is then a party shall be assumed by, and continue to be the plan of, the Surviving
Corporation. To the extent any employee benefit plan, incentive compensation plan or any other
similar plan of the Parent provides for the issuance or purchase of, or otherwise relates to, the
Parent’s capital stock, after the Effective Time of the Merger such plan shall be deemed to provide
for the issuance or purchase of, or otherwise relate to, the same class and series of the Surviving
Corporation’s stock.
Section 2.4. Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, shares of Parent’s Common Stock, Series A Preferred Stock and Series B Preferred Stock
that are issued and outstanding immediately prior to the Effective Time held by holders of shares
who have properly demanded appraisal for such shares under Sections 607.1301 to 607.1333 of the
FBCA (the “Dissenting Shares”) shall not be converted under this Agreement; provided, however, that
if, after the Effective Time, any such shareholder shall fail to perfect or effectively waive,
withdraw, or lose such shareholders’ appraisal rights under the FBCA, such shareholder’s shares
shall no longer be deemed to be Dissenting Shares for purposes of this Agreement and shall
thereupon be converted at the Effective Time into shares of the Surviving
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Corporation’s common stock, Series A Preferred Stock and Series B Preferred Stock, as the case
may be, in accordance with Section 2.1 of this Agreement.
Article 3. TRANSFER AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 3.1. Effects of the Merger. At the Effective Time of the Merger, the Merger
shall have the effects specified in the FBCA, the DGCL and this Agreement. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time of the Merger, the
Surviving Corporation shall possess all the rights, privileges, powers, and franchises, of a public
as well as a private nature, and shall be subject to all of the restrictions, disabilities and
duties of each of the parties to this Agreement, the rights, powers, and privileges of the Parent
and the Subsidiary, and all property, real, personal, and mixed, and all debts due to each of them
on whatever account, shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers, and franchises, and all and every interest shall thereafter be the property of
the Surviving Corporation as they were of the respective constituent entities, and the title to any
real estate whether by deed or otherwise vested in the Parent and the Subsidiary or either of them,
shall not revert to be in any way impaired by reason of the Merger, but all rights of creditors and
all liens upon any property of the parties hereto, shall be preserved unimpaired, and all debts,
liabilities and duties of the respective constituent entities shall thenceforth attach to the
Surviving Corporation, and may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it.
Section 3.2. If, at any time after the Effective Time of the Merger, the Surviving Corporation
shall consider or be advised that any further assignments or assurances in law or any other acts
are necessary or desirably (a) to vest, perfect, or conform, of record or otherwise, in the
Surviving Corporation, title and possession of any property right of the Parent acquired or to be
acquired by reason of, or as a result of, the Merger, or (b) otherwise carry out the purposes of
this Agreement, the Parent and its proper officers and directors shall be deemed to have granted to
the Surviving Corporation an irrevocable power of attorney to execute and deliver all such proper
deeds, assignments and assurances in law and to do all acts necessary or proper to vest, perfect,
or conform title to and possession of such property or rights in the Surviving Corporation and
otherwise carry out the purposes of this Agreement. The proper officers and directors of the
Surviving Corporation are fully authorized in the name of the Parent to otherwise take any and all
such action.
Article 4. APPROVAL BY SHAREHOLDERS OF PARENT; AMENDMENT; EFFECTIVE TIME
Section 4.1. Approval. The Merger contemplated hereby is subject to the approval by
the requisite vote of the shareholders of Parent in accordance with applicable Florida law.
Similarly, the Merger is subject to approval by Parent as the sole stockholder of Subsidiary. As
promptly as is practicable after approval of this Agreement by the shareholders of Parent and
Subsidiary in accordance with applicable law, duly authorized officers of the respective parties
shall make and execute Articles of Merger and a Certificate of Merger and shall cause such
documents to be filed with the Secretary of State of Florida and the Secretary of State of
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Delaware, respectively, in accordance with the laws of the States of Florida and Delaware. The
effective time (“Effective Time”) of the Merger shall be the date and time on which the Merger
becomes effective under the laws of Florida or the date and time on which the Merger becomes
effective under the laws of Delaware, whichever occurs later.
Section 4.2. Amendments. The Board of Directors of Parent and Subsidiary may amend
this Agreement at any time prior to the Effective Time, provided that an amendment made subsequent
to the approval of this Merger by the shareholders of the Parent shall not (1) alter or change the
amount or kind of shares to be received in exchange for or on conversion of all or any of the
shares of the Parent’s Common Stock, Series A Preferred Stock or Series B Preferred Stock, (2)
alter or change any term of the Certificate of Incorporation of the Subsidiary, or (3) alter or
change any of the terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of the Parent’s Common Stock, Series A Preferred Stock or Series B
Preferred Stock.
Article 5. MISCELLANEOUS
Section 5.1. Termination. This Agreement may be terminated and the Merger abandoned
at any time prior to the filing of this Agreement with the Secretary of State of Florida and the
Secretary of State of Delaware, whether before or after shareholder approval of this Agreement, by
the consent of the Board of Directors of the Parent and the Subsidiary.
Section 5.2. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument.
Section 5.3. Section Headings. The section headings are for the convenience of
reference only and shall not control or affect the meaning or construction of any provision of this
Agreement.
Section 5.4. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Delaware.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the undersigned officers of each of the parties to this Agreement,
pursuant to authority duly given by their respective boards of directors, have caused this
Agreement to be duly executed on the date first set forth above.
| CATALYST PHARMACEUTICAL PARTNERS, INC., a Florida corporation |
||||
| By: | /s/ Xxxxxxx X. XxXxxxx | |||
| Name: | Xxxxxxx X. XxXxxxx | |||
| Title: | President and Chief Executive Officer | |||
| CATALYST PHARMACEUTICAL PARTNERS, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. XxXxxxx | |||
| Name: | Xxxxxxx X. XxXxxxx | |||
| Title: | President and Chief Executive Officer | |||
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