Exhibit A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into on November __, 2001, pursuant to Section 0-000-000 of the Colorado
Business Corporation Act (the "CBCA") and Section 252 of the General Corporation
Law of the State of Delaware (the "DGCL") by and between Astralis
Pharmaceuticals, Ltd., a Colorado corporation (the "Colorado Corporation"), and
Astralis Ltd., a Delaware corporation (the "Delaware Corporation"), being
sometimes referred to herein individually as a "Constituent Corporation" and
collectively as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, the Colorado Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
with an authorized capital stock (the "Colorado Corporation Capital Stock")
consisting of 50,000,000 shares of common stock, $.0001 par value (the "Colorado
Corporation Common Stock") and 3,000,000 shares of preferred stock, $.001 par
value (the "Colorado Corporation Preferred Stock"), of which 38,000,000 shares
of Colorado Corporation Common Stock are issued and outstanding on the date
hereof and no shares of Colorado Corporation Preferred Stock are issued and
outstanding on the date hereof; and
WHEREAS, the Colorado Corporation has issued and outstanding: no
options issued and outstanding (the "Colorado Options"); 75,000 warrants to
purchase Colorado Corporation Common Stock at $1.75 per such share; 6,300,000
warrants to purchase Colorado Corporation Common Stock at $1.60 per such share,
and 415,237 warrants to purchase Colorado Corporation Common Stock at $4.00 per
such share (collectively, the "Colorado Warrants"); and
WHEREAS, the Delaware Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with an authorized capital stock consisting of 75,000,000 shares of common stock
$.0001 par value (the "Delaware Corporation Common Stock") and 3,000,000 shares
of preferred stock $.001 par value (the "Delaware Corporation Preferred Stock"),
of which one share of the Delaware Corporation Common Stock is issued and
outstanding on the date hereof and held by Xxxx Ajnsztajn, its President; and
WHEREAS, the Delaware Corporation has no options (the "Delaware
Options") or warrants (the "Delaware Warrants") issued and outstanding; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have authorized and approved the merger of the Colorado Corporation
with and into the Delaware Corporation subject to and upon the terms and
conditions of this Merger Agreement (the "Merger") and Section 0-000-000 of the
CBCA and Section 252 of the DGCL, and have approved this Merger Agreement and
directed that it be executed by the undersigned officers and that it be
submitted to their respective shareholders for approval; and
WHEREAS, it is the intention of the Constituent Corporations that the
Merger shall be a tax-free reorganization within the meaning of Section 368 (a)
(1) (F) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE in consideration of the premises, which are hereby
incorporated into the terms hereof, and the mutual covenants and agreements
herein contained, and for the purpose of stating the terms and conditions of the
merger, the mode of effectuating the same, and other details and provisions that
are deemed desirable, the parties have agreed and do hereby agree, subject to
the terms and conditions set forth as follows:
ARTICLE I. TERMS OF MERGER
1.1 MERGER. On the Effective Date of the Merger (as hereinafter
defined), in accordance with the provisions of the CBCA and the DGCL, the
Colorado Corporation shall be merged with and into the Delaware Corporation,
which shall be sometimes referred to herein as the "Surviving Corporation" upon
the terms and conditions set forth in the subsequent provisions of this Merger
Agreement.
1.2 APPROVAL OF SHAREHOLDERS. This Merger Agreement shall be submitted
as promptly as practicable to the respective shareholders of the Colorado
Corporation and the Delaware Corporation as provided by the CBCA and the DGCL.
After adoption and approval of this Merger Agreement and all the transactions
and developments contemplated hereby by the respective shareholders of the
Colorado Corporation and the Delaware Corporation, and provided this Merger
Agreement is not terminated and abandoned pursuant to the provisions hereof,
Articles of Merger shall be filed in accordance with the applicable provisions
of the CBCA and a Certificate of Merger shall be filed in accordance with the
applicable provisions of the DGCL.
1.3 FILINGS AND EFFECTIVENESS. As soon as practicable following the
date of execution hereof, the Colorado Corporation and the Delaware Corporation
will, subject to the approval by the shareholders of each of the Constituent
Corporations, cause (i) the Articles of Merger along with any other required
document to be filed with the Secretary of State of the State of Colorado
pursuant to Sections 0-000-000 and 107 of the CBCA, and (ii) the Certificate of
Merger along with any other required document to be filed with the Office of the
Secretary of the State of Delaware pursuant to Section 252 of the DGCL. The
Merger shall become effective upon the occurrence of each of the following
actions:
(a) All of the conditions precedent to the consummation of the Merger
specified in this Merger Agreement shall have been satisfied or duly waived;
(b) An executed Articles of Merger meeting the requirements of the CBCA
shall have been filed with the Secretary of State of the State of Colorado and
said Secretary of State shall have issued an Articles of Merger for a period of
90 days, and the surviving corporation shall have performed all other
requirements of Section 0-000-000 of the CBCA; and
(c) An executed Certificate of Merger meeting the requirements of the
DGCL shall have been accepted for recording by the Secretary of the State of
Delaware and said Secretary of State shall have issued a Certificate of Merger.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date" and "Effective Time," respectively.
1.4 EFFECT OF MERGER - SECURITIES.
As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of Colorado Corporation Common
Stock or holders of Colorado Warrants:
(a) Conversion of Colorado Corporation Capital Stock. The presently
issued and outstanding shares of Capital Stock of the Colorado Corporation shall
be converted on a one-for-one basis into shares of the capital stock of the same
class of the Surviving Corporation, subject to 1.4(c) below.
(b) Conversion of Warrants. The Warrant exercise price, the number of
shares subject to the Warrant, the dates of grant, vesting, exercisability and
expiration of the Warrant are set forth in the respective warrant agreement
applicable thereto. All rights under the Warrants shall be treated as provided
herein, and to the extent the terms of any such warrant agreement are
inconsistent with the treatment to be accorded to the Warrants as provided
herein, then the Colorado Corporation shall cause the such warrant agreements to
be amended, and all required third party, governmental and regulatory body
consents or approvals to such amendments to be procured, such that all such
inconsistencies shall be eliminated by the Effective Time.
At the Effective Time, notwithstanding any contrary provision of the
warrant agreements, the Warrants shall, at and after the Effective Time,
evidence a warrant to purchase a like number of shares of the Delaware
Corporation Common Stock on the same terms and conditions as stated in the
respective warrant agreement.
(c) Dissenting Shares. Each dissenting share shall be converted into
the right to receive payment from the Colorado Corporation with respect thereto
in accordance with the CBCA. Notwithstanding the immediately foregoing, shares
of Colorado Corporation Common Stock outstanding immediately prior to the
Effective Time and held by a Colorado Corporation shareholder who has demanded
appraisal for such shares in accordance with the CBCA shall not be converted
into a right to receive the merger consideration, unless such shareholder fails
to perfect or withdraws or otherwise loses his or her right to appraisal. If,
after the Effective Time, such shareholder fails to perfect or withdraws or
loses his or her right to appraisal, such shares shall be treated as if they had
been converted as of the Effective Time into a right to receive the merger
consideration as provided in this Merger Agreement. The Colorado Corporation
shall give the Delaware Corporation prompt notice of any demands received by
Colorado Corporation for appraisal of shares, and the Delaware Corporation shall
have the right to participate in all negotiations and proceedings with respect
to such demands. The Colorado Corporation shall not, except with the prior
written consent of the Delaware Corporation, make any payment with respect to,
or settle or offer to settle, any such demands. Any amounts paid to a
shareholder of Colorado Corporation pursuant to a right of appraisal will be
paid by the Colorado Corporation out of its own funds and will not be reimbursed
by the Delaware Corporation or any affiliate of the Delaware Corporation.
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1.5 EFFECT OF MERGER - GENERAL
At and after the Effective Time, the Merger shall be effective as
provided in the applicable provisions of the DGCL and the CBCA. The corporate
existence of the Delaware Corporation, as the Surviving Corporation, with all of
its purposes and powers, shall continue unaffected and unimpaired by the Merger,
and, as the Surviving Corporation, it shall be governed by the DGCL and succeed
to all rights, assets, liabilities and obligations of the Colorado Corporation
in accordance with the DGCL. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, except as otherwise provided herein,
all the property, rights, privileges, powers and franchises of the Delaware
Corporation and the Colorado Corporation shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Delaware Corporation
and the Colorado Corporation shall become the debts, liabilities and duties of
the Surviving Corporation. The separate existence and corporate organization of
the Colorado Corporation shall cease at the Effective Time and thereafter the
Delaware Corporation and the Colorado Corporation shall be a single corporation,
to wit, the Surviving Corporation.
1.6 CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. The
Certificate of Incorporation of the Delaware Corporation as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
1.7 BY-LAWS OF SURVIVING CORPORATION. The By-Laws of the Delaware
Corporation as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the By-Laws of the Surviving
Corporation until altered, amended or repealed as provided in the By-Laws or as
provided by applicable law.
1.8 DIRECTORS OF SURVIVING CORPORATION. The directors of the Colorado
Corporation as of the Effective Date of the Merger shall be and become the
directors of the Surviving Corporation.
1.9 OFFICERS OF SURVIVING COMPANY. The officers of the Colorado
Corporation as of the Effective Date of the Merger shall be and become the
officers of the Surviving Corporation.
ARTICLE II. CONDITIONS TO MERGER
The obligations of the Constituent Corporations to consummate the
Merger are subject to satisfaction of the following conditions:
2.1 AUTHORIZATION. The holders of at least a majority of the
outstanding shares of the Colorado Corporation Common Stock shall have approved
this Merger Agreement and the Merger. All necessary action shall have been taken
to authorize the execution, delivery and performance of this Merger Agreement by
each of the Constituent Corporations.
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ARTICLE III. GENERAL PROVISIONS
3.1 BINDING AGREEMENT. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns; provided, however, that this Merger Agreement may not be assigned by
any party without the written consent of the other party.
3.2 AMENDMENTS. The Board of Directors of the Colorado Corporation and
the Delaware Corporation may amend this Merger Agreement at any time prior to
the filing of this Merger Agreement (or a certificate in lieu thereof) with the
Secretary of State of Delaware, provided that an amendment made subsequent to
the adoption of this Merger Agreement by the shareholders of either the Colorado
Corporation or the Delaware Corporation shall not: (i) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of the Colorado Corporation or the Delaware Corporation,
(ii) alter or change any term of the Certificate of Incorporation of the
Surviving Corporation to be effected by the Merger, or (iii) alter or change any
of the terms and conditions of this Merger Agreement if such alteration or
change would adversely affect the holders of any class or series of capital
stock of either the Colorado Corporation or the Delaware Corporation.
3.3 FURTHER ASSURANCES. From time to time, as and when required by the
Delaware Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of the Colorado Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by the Colorado
Corporation such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or confirm of record or otherwise by the Delaware
Corporation the title to and possession of all the property, rights, privileges,
powers, franchises, assets, immunities and authority of the Colorado Corporation
and otherwise to carry out the purposes of this Merger Agreement. The Officers
and Directors of the Delaware Corporation are fully authorized in the name and
on behalf of the Colorado Corporation or otherwise to take any and all such
action and to execute and deliver any and all such deeds or other instruments.
3.4 ABANDONMENT. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either the Colorado Corporation
or the Delaware Corporation, or by both, by the adoption of appropriate
resolutions and written notification thereof to the other party to the Merger,
notwithstanding the approval of this Merger Agreement by the shareholders of the
Colorado Corporation or the Delaware Corporation, or by both. In the event of
the termination of this Merger Agreement and the abandonment of the Merger
pursuant to the provisions of this section, this Merger Agreement shall become
void and have no effect, without any liability on the part of either of the
Constituent Corporations or their respective officers, directors or shareholders
in respect thereof.
3.5 GOVERNING LAW. This Merger Agreement shall be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the CBCA.
[Signatures on following page]
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IN WITNESS WHEREOF, each of the undersigned corporations has caused
this Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the ___th day of November, 2001.
ASTRALIS PHARMACEUTICALS, LTD.
a Colorado corporation
By:
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Xxxx Ajnsztajn,
President
ASTRALIS LTD.
a Delaware corporation
By:
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Xxxx Ajnsztajn,
President
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