AGREEMENT AND PLAN OF MERGER
AGREEMENT OF MERGER (this "Merger Agreement") made and entered into as of
the 26 day of January, 1998 by and between MARINE GENETICS CORPORATION, a
Delaware corporation ("MARINE"), and OMEGA PROTEIN CORPORATION, a Nevada
corporation ("OMEGA").
RECITALS
This Agreement is made with reference to the following facts:
(i) The respective Boards of Directors of MARINE and OMEGA have
determined that it is advisable and to the advantage of the two corporations
that MARINE merge into OMEGA upon the terms and conditions provided herein in
order to effect a reincorporation of MARINE into a Nevada corporation with the
Articles of Incorporation and Bylaws of OMEGA being the articles of
incorporation and bylaws of the surviving corporation; and
(ii) XXXXXX CORPORATION, a Delaware corporation owns all the issued and
outstanding common stock of OMEGA, being 100 shares of OMEGA's common stock, and
all issued and outstanding common stock of MARINE.
(iii) The respective Boards of Directors of MARINE and OMEGA have
approved this Merger Agreement and the Boards of Directors of MARINE and OMEGA
have directed that this Merger Agreement be submitted to a vote of their sole
stockholders;
In consideration of the mutual agreements and covenants set forth
herein, MARINE and OMEGA hereby agree to merge as follows:
1. MERGER. Subject to the terms and conditions of this Agreement, and in
accordance with the provisions of the Nevada Revised Statutes and the Delaware
General Corporation Law, at the Effective Date, MARINE will merge with and into
OMEGA, the separate corporate existence of MARINE shall thereupon cease, and
OMEGA will be the surviving corporation (the "Surviving Corporation") and shall
continue its corporate existence under the laws of the State of Nevada as
wholly-owned subsidiary of XXXXXX CORPORATION.
2. EFFECTIVE TIME OF THE MERGER. Subject to the provisions of this
Agreement, articles of merger (the "Articles of Merger") shall be duly prepared
and executed by OMEGA and MARINE and thereafter delivered to the office of the
Nevada Secretary of State for filing, as provided in Chapter 92A of the Nevada
Revised Statutes, and a Certificate of Merger shall be duly prepared, executed
and filed with the Secretary of State of the State of Delaware pursuant to
Section 251 of the Delaware General Corporation Law. The Merger shall become
effective upon the later of the
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filing of the Articles of Merger with the Nevada Secretary of State and the
filing of a Certificate of Merger with the Delaware Secretary of State (the
"Effective Date").
3. EFFECTS OF MERGER. The Merger shall have the effects as set forth in
Section 259 of the Delaware General Corporation Law and Nevada Revised Statutes
("NRS") 92A.250.
4. DIRECTORS, OFFICERS AND GOVERNING DOCUMENTS. The directors and
officers of OMEGA shall be the same on the Effective Date as they are
immediately prior thereto. The Articles of Incorporation of OMEGA shall continue
to be the Articles of Incorporation of OMEGA as the surviving corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable laws. The Bylaws of OMEGA, in effect on the
Effective Date shall continue to be the Bylaws of OMEGA as the surviving
corporation without change or amendment until amended in accordance with the
provisions thereof and applicable laws.
5. FURTHER ASSURANCES. From time to time, as and when required by OMEGA
or by its successors and assigns, there shall be executed and delivered on
behalf or MARINE such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall be appropriate
or necessary in order to vest, perfect or confirm, of record or otherwise, in
OMEGA the title to and possession of all the property, interest, assets, rights,
privileges, immunities, powers, franchises and authority of MARINE and otherwise
to carry out the purposes of this Merger Agreement. The officers and directors
of OMEGA are fully authorized in the name and on behalf of MARINE to take any
and all such action and to execute and deliver any and all such deeds and other
instruments.
6. CONVERSION OF SHARES. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each share of
common stock of OMEGA outstanding immediately prior thereto shall be cancelled
and returned to the status of authorized but unissued shares, without the
payment of any consideration therefor. Each issued and outstanding share of
Common Stock of MARINE shall be converted into validly issued, fully paid and
non-assessable OMEGA common stock at the rate of 19,676 shares of OMEGA common
stock for each share of MARINE common stock. Each stock certificate of MARINE
evidencing ownership of any shares of the common stock of MARINE shall continue
to evidence ownership of the number of shares of OMEGA into which the shares
evidenced thereby are converted by virtue hereof. All the outstanding options,
if any, for the stock of MARINE shall be deemed options and warrants to acquire
the same number of shares of the common stock of the Surviving Corporation.
7. COVENANTS OF OMEGA. OMEGA covenants and agrees that it will, on or
before the Effective Date qualify to do business as a foreign corporation in
such other states as MARINE is legally required to so qualify.
8. ABANDONMENT. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either OMEGA or MARINE or both, notwithstanding approval of this
Merger Agreement by XXXXXX
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CORPORATION, the sole stockholder of both OMEGA and MARINE.
9. COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement the same may be executed in any number of counterparts, each of
which shall be
deemed to be an original.
10. SERVICE OF PROCESS. OMEGA agrees that it may be served with process
in Delaware in any proceeding for enforcement of any obligation of MARINE, as
well as for enforcement of any obligation of OMEGA arising from the merger and
OMEGA irrevocably appoints the Secretary of State of Delaware as its agent to
accept service of process in any suit or other proceedings with respect to any
such obligation.
11. FURTHER ACTIONS. The Board of Directors and the proper officers of
each of OMEGA and MARINE are hereby authorized, empowered and directed to do any
and all acts and things, and to make, execute, deliver, file and/or record any
and all instruments, papers and documents which shall be or become necessary,
proper or convenient to carry out or put into effect any of the provisions of
this Agreement of Merger or of the merger herein provided for.
12. GOVERNING LAW. This Merger Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, this Merger Agreement, having been first duly
approved by resolution of the Board of Directors of OMEGA and MARINE is hereby
executed on behalf of each corporation by their respective officers.
OMEGA PROTEIN CORPORATION,
a Nevada Corporation
By:
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Xxxxxx X. xxx Xxxxxxxxx, III,
Chief Executive Officer
By:
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Xxxx X. Xxxxx, Secretary
MARINE GENETICS CORPORATION,
a Delaware corporation
By:
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Chief Executive Officer
By:
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Secretary
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