AGREEMENT AND PLAN OF MERGER
Exhibit
10.1
AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan of Merger (the “Plan”)
is
adopted as of October 14, 2005, by and between VioQuest Delaware, Inc., a
Delaware corporation (“VioQuest
Delaware”),
and
VioQuest Pharmaceuticals, Inc., a Minnesota corporation (“VioQuest
Minnesota”).
WHEREAS,
VioQuest Delaware is a corporation duly organized and existing under the
laws of
the State of Delaware;
WHEREAS,
VioQuest Minnesota is a corporation duly organized and existing under the
laws
of the State of Minnesota;
WHEREAS,
on the
date hereof, VioQuest Delaware has authority to issue One Hundred Ten Million
(110,000,000) shares of capital stock consisting of One Hundred Million
(100,000,000) shares of common stock, $.001 par value per share (“Delaware
Common Stock”),
and
Ten Million (10,000,000) shares of preferred stock, $.001 par value per
share;
WHEREAS,
on the
date hereof, One Hundred (100) shares of Delaware Common Stock are issued
and
outstanding, all of which are owned by VioQuest Minnesota;
WHEREAS,
on the
date hereof, VioQuest Minnesota has authority to issue 50,000,000 shares
of
undesignated capital stock, par value $.01 per share (the “Minnesota
Common Stock”),
of
which 17,827,924 shares are issued and outstanding;
WHEREAS,
the
respective boards of directors of VioQuest Delaware and VioQuest Minnesota
have
determined that, for the purpose of effecting the reincorporation of VioQuest
Minnesota in the State of Delaware, it is advisable and in the best interests
of
such corporations and their respective shareholders that VioQuest Minnesota
merge with and into VioQuest Delaware upon the terms and conditions herein
provided; and
WHEREAS,
the
respective boards of directors of VioQuest Delaware and VioQuest Minnesota
have
approved this Plan; and
WHEREAS,
the
respective shareholders of VioQuest Delaware and VioQuest Minnesota have
approved this Plan;
NOW,
THEREFORE,
in
consideration of the mutual agreements and covenants set forth herein, VioQuest
Minnesota and VioQuest Delaware hereby agree to merge as follows:
1.
Merger.
Subject
to the terms and conditions hereinafter set forth, VioQuest Minnesota shall
be
merged with and into VioQuest Delaware, which shall be the surviving corporation
in the merger (the “Merger”).
The
Merger shall be effective on the later of the date and time (the “Effective
Time”)
that a
properly executed certificate of merger consistent with the terms of this
Merger
Agreement and Section 252 of the Delaware General Corporation Law (“DGCL”)
is
filed with the Secretary of State of Delaware or articles of merger are filed
with the Secretary of the State of Minnesota as required by Section 302A.615
of
the Minnesota Business Corporation Act (“MBCA”).
2.
Principal
Office of VioQuest Delaware.
The
principal office of VioQuest Delaware is 7 Xxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxx
Xxxxxxxx, Xxx Xxxxxx, 00000.
3.
Corporate
Documents.
The
Certificate of Incorporation of VioQuest Delaware, as in effect immediately
prior to the Effective Time, shall continue to be the Certificate of
Incorporation of VioQuest Delaware as the surviving corporation without change
or amendment until further amended in accordance with the provisions thereof
and
applicable law, except that the Certificate of Incorporation of VioQuest
Delaware shall be amended to change the name of VioQuest Delaware to “VioQuest
Pharmaceuticals, Inc.,” as provided in the certificate of merger filed with the
Secretary of State of Delaware pursuant to this Plan. The Bylaws of VioQuest
Delaware, as in effect immediately prior to the Effective Time, shall continue
to be the Bylaws of VioQuest Delaware as the surviving corporation without
change or amendment until further amended in accordance with the provisions
thereof and applicable law.
4.
Directors
and Officers.
The
directors and officers of VioQuest Minnesota at the Effective Time shall
be and
become directors and officers, holding the same titles and positions, of
VioQuest Delaware at the Effective Time, and after the Effective Time shall
serve in accordance with the Bylaws of VioQuest Delaware.
5.
Succession.
At the
Effective Time, VioQuest Delaware shall succeed to VioQuest Minnesota in
the
manner of and as more fully set forth in Section 259 of the DGCL and in Section
302A.641 of the MBCA.
6.
Further
Assurances.
From
time to time, as and when required by VioQuest Delaware or by its successors
and
assigns, there shall be executed and delivered on behalf of VioQuest Minnesota
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 or perfect in or to confer of record or otherwise in VioQuest
Minnesota the title to and possession of all the interests, assets, rights,
privileges, immunities, powers, franchises and authority of VioQuest Minnesota,
and otherwise to carry out the purposes and intent of this Merger Agreement,
and
the officers and directors of VioQuest Delaware are fully authorized in the
name
and on behalf of VioQuest Minnesota or otherwise to take any and all such
actions and to execute and deliver any and all such deeds and other
instruments.
7.
Common
Stock of VioQuest Minnesota.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
the holder thereof, each share of Minnesota Common Stock outstanding immediately
prior thereto shall be changed and converted automatically into one fully
paid
and nonassessable share of Delaware Common Stock.
8.
Stock
Certificates.
At and
after the Effective Time, all of the outstanding certificates which prior
to
that time represented shares of Minnesota Common Stock shall be deemed for
all
purposes to evidence ownership of and to represent shares of Delaware Common
Stock into which the shares of the Minnesota Common Stock represented by
such
certificates have been converted as herein provided. The registered owner
on the
books and records of VioQuest Minnesota or its transfer agent of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to VioQuest Delaware
or its
transfer agent, have and be entitled to exercise any voting and other 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
above provided.
9.
Options.
Each
option, warrant or other right to purchase shares of Minnesota Common Stock,
which are outstanding at 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 an option, warrant or right to purchase one share of Delaware Common
Stock at an option price per share equal to the purchase price applicable
to the
option, warrant or other right to purchase Minnesota Common Stock.
10.
Common
Stock of VioQuest Delaware.
At the
Effective Time, the previously outstanding One Hundred (100) shares of Delaware
Common Stock registered in the name of VioQuest Minnesota and which shall,
by
reason of the Merger, be reacquired by VioQuest Delaware, shall be retired
and
shall resume the status of authorized and unissued shares of Delaware Common
Stock, and no shares of Delaware Common Stock or other securities of VioQuest
Delaware shall be issued in respect thereof.
11.
Amendment. At
any
time before or after approval by the shareholders of VioQuest Minnesota,
this
Plan may be amended in any manner (except that Section 7 and any of the other
principal terms may not be amended without the approval of the shareholders
of
VioQuest Minnesota) as may be determined in the judgment of the respective
Boards of Directors of VioQuest Delaware and VioQuest Minnesota to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purposes and intent of this Merger
Agreement.
12.
Abandonment.
At any
time before the Effective Time, this Merger Agreement may be terminated and
the
Merger contemplated hereby may be abandoned by the Board of Directors of
either
VioQuest Minnesota or VioQuest Delaware or both, notwithstanding approval
of
this Merger Agreement by the sole shareholder of VioQuest Delaware or the
shareholders of VioQuest Minnesota, or both.
13.
Rights
and Duties of VioQuest Delaware.
At the
Effective Time and for all purposes the separate existence of VioQuest Minnesota
shall cease and shall be merged with and into VioQuest Delaware which, as
the
surviving corporation, shall thereupon and thereafter possess all the rights,
privileges, immunities, licenses and franchises (whether of a public or private
nature) of VioQuest Minnesota; and all property (real, personal and mixed),
all
debts due on whatever account, all choses in action, and all and every other
interest of or belonging to or due to VioQuest Minnesota shall continue and
be
taken and deemed to be transferred to and vested in VioQuest Delaware without
further act or deed; and the title to any real estate, or any interest therein,
vested in VioQuest Minnesota shall not revert or be in any way impaired by
reason of such Merger; and VioQuest Delaware shall thenceforth be responsible
and liable for all the liabilities and obligations of VioQuest Minnesota;
and,
to the extent permitted by law, any claim existing, or action or proceeding
pending, by or against VioQuest Minnesota may be prosecuted as if the Merger
had
not taken place, or VioQuest Delaware may be substituted in the place of
such
corporation. Neither the rights of creditors nor any liens upon the property
of
VioQuest Minnesota shall be impaired by the Merger. If at any time VioQuest
Delaware shall consider or be advised that any further assignment or assurances
in law or any other actions are necessary or desirable to vest the title
of any
property or rights of VioQuest Minnesota in VioQuest Delaware according to
the
terms hereof, the officers and directors of VioQuest Delaware are empowered
to
execute and make all such proper assignments and assurances and do any and
all
other things necessary or proper to vest title to such property or other
rights
in VioQuest Delaware, and otherwise to carry out the purposes of this Merger
Agreement.
14.
Consent
to Service of Process.
VioQuest Delaware hereby irrevocably appoints the Secretary of the State
of
Minnesota and the successors of such officer its attorney in the State of
Minnesota upon whom may be served any notice, process or pleading in any
action
or proceeding against it to enforce against VioQuest Delaware any obligation
of
VioQuest Minnesota or to enforce the rights of a dissenting shareholder of
VioQuest Minnesota.
IN
WITNESS WHEREOF, this Agreement and Plan of Merger, having first been duly
approved by resolution of the Boards of Directors of VioQuest Minnesota and
VioQuest Delaware, has been executed on behalf of each of said two corporations
by their respective duly authorized officers.
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a Minnesota corporation
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VIOQUEST DELAWARE, INC.
a Delaware corporation
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| By: | /s/ Xxxxxx Xxxxxxxxx | By: | /s/ Xxxxxx Xxxxxxxxx | |
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Xxxxxx Xxxxxxxxx |
Xxxxxx Xxxxxxxxx |
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Chief
Executive Officer
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Chief
Executive Officer
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