EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF APHTON CORPORATION,
A DELAWARE CORPORATION,
AND
APHTON CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of January 29, 1998 (the
"Agreement"), is between Aphton Corporation, a Delaware corporation ("Aphton
Delaware"), and Aphton Corporation, a California corporation ("Aphton
California"). Aphton Delaware and Aphton California are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. Aphton Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 32,000,000
shares, $.001 par value, of which 30,000,000 shares are designated "Common
Stock" and 2,000,000 shares are designated "Preferred Stock." As of January 27,
1998, 1,000 shares of Common Stock were issued and outstanding, all of which are
held by Aphton California, and no shares of Preferred Stock were issued and
outstanding.
B. Aphton California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
20,000,000 shares, no par value, all of which are designated "Common Stock." As
of January 27, 1998, 14,187,217 shares of Common Stock were issued and
outstanding.
C. The Board of Directors of Aphton California has determined that,
for the purpose of effecting the reincorporation of Aphton California in the
State of Delaware, it is advisable and in the best interests of Aphton
California and its shareholders that Aphton California merge with and into
Aphton Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors and shareholders of Aphton
Delaware and Aphton California have approved this Agreement and the respective
Boards of Directors have directed that this Agreement be executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Aphton Delaware and Aphton California hereby agree,
subject to the terms and conditions hereinafter set forth, as follows:
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California Corporations Code, Aphton
California shall be merged with and into Aphton Delaware (the "Merger"), the
separate existence of Aphton California shall cease and Aphton Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and Aphton Delaware shall be, and is herein sometimes referred to as,
the "Surviving Corporation," and the name of the Surviving Corporation shall be
Aphton Corporation.
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions shall have been completed:
(a) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(b) An executed and acknowledged counterpart of this Agreement or
certificate of merger meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the
State of Delaware; and
(c) An executed counterpart of this Agreement or certificate of merger
meeting the requirements of the California Corporations Code shall have been
submitted to the Secretary of State of the State of California.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Aphton California shall cease and Aphton Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
Aphton California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Aphton California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Aphton California in the same manner as if
Aphton Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
Corporations Code.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Aphton Delaware 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.
2.2 Bylaws. The Bylaws of Aphton Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of Aphton
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1 Aphton California Common Stock. Upon the Effective Date of the
Merger, each share of Aphton California Common Stock, no par value, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be changed and converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.001 par value, of the Surviving
Corporation.
3.2 Aphton California Employee Benefit Plans, Options, Warrants,
Convertible Securities. Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue all employee benefit plans of Aphton
California. As of January 27, 1998, there are options, warrants, purchase rights
for or securities convertible into an aggregate of 2,022,300 shares of Common
Stock of Aphton California. Each outstanding and unexercised option, warrant or
other right to purchase Aphton California Common Stock or security convertible
into Aphton California Common Stock shall become an outstanding and unexercised
option, warrant or right to purchase the Surviving Corporation's Common Stock or
a security convertible into the Surviving Corporation's Common Stock on the
basis of one share of the Surviving Corporation's Common Stock for each share of
Aphton California Common Stock issuable pursuant to any such option, warrant,
stock purchase right or convertible security, on the same terms and conditions
and at an exercise price per share equal to the exercise price applicable to any
such Aphton California option, warrant, stock purchase right or convertible
security at the Effective Date of the Merger.
A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, warrants, stock purchase
rights or convertible securities equal to the number of shares of Aphton
California Common Stock so reserved immediately prior to the Effective Date of
the Merger.
3.3 Aphton Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $.001 par value, of Aphton Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by Aphton Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
3.4 Certificates. After the Effective Date of the Merger, each
outstanding certificate theretofore representing shares of Aphton California
Common Stock shall be deemed for all purposes to represent the same number of
whole shares of the Surviving Corporation's Common Stock.
IV
GENERAL
4.1 Covenants of Aphton Delaware. Aphton Delaware covenants and agrees
that it will, on or as soon as practicable following the Effective Date of the
Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California Corporations Code;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by Aphton Delaware of all of the franchise tax
liabilities of Aphton California and for obtaining a tax clearance
certificate; and
(c) Take such other actions as may be required by the California
Corporations Code.
4.2 Further Assurances. From time to time, as and when required by
Aphton Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Aphton California such deeds and other instruments, and
there shall be taken or caused to be taken by Aphton Delaware and Aphton
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by Aphton
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Aphton
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Aphton Delaware are fully authorized in the name and
on behalf of Aphton California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
4.3 Abandonment. At any time before the filing of this Agreement with
the Secretary of State of the State of Delaware, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Aphton California or Aphton Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of Aphton
California or by the sole stockholder of Aphton Delaware, or by both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement with
the Secretaries of State of the States of California and Delaware, provided that
an amendment made subsequent to the adoption of this Agreement by the
shareholders of either Constituent Corporation shall not: (1) 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 such Constituent Corporation, (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, (3) alter or change any of the terms and conditions of
this Agreement if such alteration or change would adversely affect the holders
of any class of shares or series thereof of such Constituent Corporation, or (4)
alter or change any of the principal terms of this Agreement.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
0000 Xxxxxx Xxxxxx, xx xxx xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle, 19801 and
The Corporation Trust Company is the registered agent of the Surviving
Corporation at such address.
4.6 Expenses. Each party to the transactions contemplated by this
Agreement shall pay its own expenses, if any, incurred in connection with such
transactions.
4.7 Agreement. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 00 X.X. 0xx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000-0000 and copies thereof will be
furnished to any shareholder of either Constituent Corporation, upon request and
without cost.
4.8 Governing Law. This Agreement shall in all respects 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
California Corporations Code.
4.9 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Aphton Delaware and Aphton California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
APHTON CORPORATION
a Delaware corporation
By: /s/ Xxx X. Xxxxxxx
-----------------------------
Name: Xxx X. Xxxxxxx
Title: Assistant Secretary
APHTON CORPORATION
a California corporation
By: /s/ Xxx X. Xxxxxxx
-----------------------------
Name: Xxx X. Xxxxxxx
Title: Assistant Secretary
