EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
DURA PHARMACEUTICALS, INC.
(A DELAWARE CORPORATION)
AND
DURA PHARMACEUTICALS, INC.
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of July 1, 1997 (this
"Agreement") is between Dura Pharmaceuticals, Inc., a Delaware corporation
("Dura Delaware"), and Dura Pharmaceuticals, Inc., a California corporation
("Dura California"). Dura Delaware and Dura California are sometimes referred
to herein as the "Constituent Corporations."
R E C I T A L S
---------------
A. Dura Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has a total authorized capital stock of
One Hundred Five Million (105,000,000) shares. The number of shares of
Preferred Stock authorized to be issued is Five Million (5,000,000), par value
$.001. No shares of Preferred Stock were outstanding as of the date hereof and
prior to giving effect to the transactions contemplated hereby. The number of
shares of Common Stock authorized to be issued is One Hundred Million
(100,000,000), par value $.001. As of the date hereof, and before giving effect
to the transactions contemplated hereby, 43,848,063 shares of Common Stock were
issued and outstanding, all of which were held by Dura California.
B. Dura California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital stock of
One Hundred Five Million (105,000,000) shares. The number of shares of
Preferred Stock authorized to be issued is Five Million (5,000,000), no par
value, none of which are currently outstanding. The number of shares of Common
Stock authorized to be issued is One Hundred Million (100,000,000), no par
value.
C. The Board of Directors of Dura California has determined that,
for the purpose of effecting the reincorporation of Dura California in the State
of Delaware, it is advisable and in the best interests of Dura California that
Dura California merge with and into Dura Delaware upon the terms and conditions
herein provided.
D. The respective Boards of Directors of Dura Delaware and Dura
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
E. Dura Delaware is a wholly-owned subsidiary of Dura California.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Dura Delaware and Dura 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 General Corporation Law of the State of
California, Dura California shall be merged with and into Dura Delaware (the
"Merger"), the separate existence of Dura California shall cease and Dura
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be Dura
Pharmaceuticals, Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall not become effective
until the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the stockholders of the Dura California and the sole
stockholder of Dura Delaware in accordance with the requirements of
the Delaware General Corporation Law and the General Corporation Law
of the State of California;
(b) 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;
(c) An executed Certificate of Merger or an executed counterpart
of this Agreement meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of
the State of Delaware; and
(d) An executed counterpart of this Agreement, a Certificate of
Ownership or any other document filed with the Secretary of State of
the State of Delaware pursuant to section (c) above, shall have been
filed with 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 Dura California shall cease and Dura 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
Dura California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Dura California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of Dura Delaware 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 Dura California in the same
manner as if Dura Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the General Corporation Law of the State of
Delaware and the General Corporation Law of the State of California.
A-2
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of Dura 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 Dura 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 Dura
Delaware immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their successors shall
have been duly elected and qualified or until as otherwise provided by law, the
Restated Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 DURA CALIFORNIA COMMON SHARES. Upon the Effective Date of the
Merger, each share of Dura 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 share or any
other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Common Stock, par value $.001 per share, of the Surviving
Corporation. No fractional share interests of the Surviving Corporation Common
Stock shall be issued but shall, instead, be rounded up to the nearest whole
number.
3.2 DURA CALIFORNIA OPTIONS, WARRANTS AND STOCK PURCHASE RIGHTS.
Upon the Effective Date of the Merger, the Surviving Corporation shall assume
and continue the employee benefits plans (including the 401(k) Profit Sharing
Plan, the Deferred Compensation Plan and the 1992 Stock Option Plan) and all
other employee benefit plans of Dura California. Each outstanding and
unexercised option, warrant or other right to purchase Dura California Common
Stock shall become an option, warrant or right to purchase the Surviving
Corporation's Common Stock on the basis of one (1) share of the Surviving
Corporation's Common Stock for each share of Dura California Common Stock
issuable pursuant to any such option, warrant or stock purchase right on the
same terms and conditions and at an exercise price per share equal to the
exercise price per share applicable to any such Dura California option, warrant
or stock purchase right at the Effective Date of the Merger. There are no
options, warrants or purchase rights for Preferred Stock of Dura California.
A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, warrants and stock
purchase rights equal to the number of shares of Dura California Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.3 DURA DELAWARE COMMON STOCK. Upon the Effective Date of the
Merger, each share of Common Stock, par value $.001 per share, of Dura Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by Dura Delaware, the holder of such shares or any other
person, be cancelled and returned to the status of authorized but unissued
shares.
A-3
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of Dura
California Common Stock may be asked to surrender the same for cancellation to
an exchange agent, whose name will be delivered to such holders prior to any
requested exchange (the "Exchange Agent"), and each such holder shall be
entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock
into which the surrendered shares were converted as herein provided. Until so
surrendered, each outstanding certificate theretofore representing shares of
Dura California Common Stock shall be deemed for all purposes to represent the
number of shares of the Surviving Corporation's Common Stock into which such
shares of Dura California Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability as the certificates of Dura
California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of Dura Delaware stock is to be issued
in a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of issuance of
such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Dura Delaware that
such tax has been paid or is not payable.
No action need be taken by holders of Dura California Common Stock to
exchange their certificates for shares of Dura Delaware Common Stock; this will
be accomplished at the time of the next transfer by the shareholder.
Certificates for shares of Dura California will automatically represent an equal
number of shares of Dura Delaware upon the Effective Date of the Merger.
IV. GENERAL
4.1 COVENANTS OF DURA DELAWARE. Dura Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the State
of California.
A-4
4.1.2 File any and all documents with the California Franchise Tax
Board necessary for the assumption by Dura Delaware of all of the franchise tax
liabilities of Dura California.
4.1.2 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
Dura Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Dura California such deeds and other instruments, and
there shall be taken or caused to be taken by it 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 Dura Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Dura California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Dura Delaware are fully authorized
in the name and on behalf of Dura 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 Effective Date of the
Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Dura California or of Dura
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of Dura California.
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 (or certificate in lieu thereof) with the Secretary of State of the
State of Delaware, provided that an amendment made subsequent to the adoption of
this Agreement by the stockholder or 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 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 any class or series
of capital stock of any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ of Kent and the registered agent of the Surviving Corporation at such
address is Corp America, Inc.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and copies thereof will be furnished to
any stockholder or shareholder of either Constituent Corporation, upon request
and without cost.
4.7 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
General Corporation Law of the State of California.
A-5
4.8 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
A-6
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Boards of Directors of Dura Pharmaceuticals, Inc., a Delaware
corporation, and Dura Pharmaceuticals, Inc., a California corporation, is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
DURA PHARMACEUTICALS, INC.,
a Delaware corporation
By: /s/ Cam ▇. ▇▇▇▇▇▇
-----------------------------------------
Cam ▇. ▇▇▇▇▇▇
Chairman, President and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President,
General Counsel and Secretary
DURA PHARMACEUTICALS, INC.,
a California corporation
By: /s/ Cam ▇. ▇▇▇▇▇▇
-----------------------------------------------
Cam ▇. ▇▇▇▇▇▇
Chairman, President and Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President,
General Counsel and Secretary
[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
A-7
