AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.2
AGREEMENT
AND PLAN OF MERGER (this “Merger
Agreement”)
dated
as of June 2, 2005, by and between Xxxxxx Systems, Inc., a Nevada corporation
(“Xxxxxx-Nevada”),
and
Xxxxxx Systems, Inc., a Delaware corporation (“Xxxxxx-Delaware”).
WHEREAS,
Xxxxxx-Nevada is a corporation duly organized and existing under the laws
of the
State of Nevada; and
WHEREAS,
Xxxxxx-Delaware is a corporation duly organized and existing under the laws
of
the State of Delaware; and
WHEREAS,
Xxxxxx-Nevada has authority to issue 25,000,000 shares of common stock, $0.001
par value per share (“Xxxxxx-Nevada
Common Stock”),
of
which 16,232,909 shares are issued and outstanding; and
WHEREAS,
Xxxxxx-Delaware has authority to issue 60,000,000 shares of common stock,
par
value $0.001 per share (“Xxxxxx-Delaware
Common Stock”),
and
5,000,000 shares of preferred stock, par value $0.001 per share;
and
WHEREAS,
100 shares of Xxxxxx-Delaware Common Stock are issued and outstanding, all
of
which are owned, beneficially and of record, by Xxxxxx-Nevada; and
WHEREAS,
the respective Boards of Directors of Xxxxxx-Nevada and Xxxxxx-Delaware have
determined that, for the purpose of effecting the reincorporation of
Xxxxxx-Nevada in the State of Delaware, it is advisable and in the best
interests of both corporations and their respective stockholders that
Xxxxxx-Nevada merge with and into Xxxxxx-Delaware upon the terms hereinafter
provided and in accordance with the laws of the State of Nevada and the State
of
Delaware in a transaction qualifying as a reorganization within the meaning
of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the
“Code”);
and
WHEREAS,
the respective Boards of Directors of Xxxxxx-Nevada and Xxxxxx-Delaware have
approved this Merger Agreement and directed that this Merger Agreement be
submitted to a vote of their respective stockholders for approval in accordance
with applicable law.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, Xxxxxx-Nevada and Xxxxxx-Delaware hereby agree as
follows:
1. Merger.
Subject
to the terms of this Merger Agreement, Xxxxxx-Nevada shall be merged with
and
into Xxxxxx-Delaware (the “Merger”)
in
accordance with Section 253 of the Delaware General Corporation Law
(“DGCL”)
and
Sections 92A.120 and 92A.190 of the Nevada Revised Statutes (“NRS”)
such
that Xxxxxx-Delaware shall be the surviving corporation (hereinafter referred
to
as the “Surviving
Corporation”).
The
Merger shall become effective on the date and at the time (the “Effective
Time”)
at
which a certified copy of the Articles of Merger and a Certificate of Ownership
and Merger complying with the DGCL, executed and acknowledged on behalf of
Xxxxxx-Delaware and Xxxxxx-Nevada in accordance with the requirements of
the NRS
and the DGCL, have been filed with the Nevada Secretary of State and the
Delaware Secretary of State.
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2. Certificate
of Incorporation and Bylaws.
The
Certificate of Incorporation of Xxxxxx-Delaware, as in effect on the Effective
Time, shall be the Certificate of Incorporation of the Surviving Corporation
without change or amendment, until thereafter amended in accordance with
the
provisions thereof and applicable laws. The Bylaws of Xxxxxx-Delaware, as
in
effect on the Effective Time, shall be the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof and applicable laws.
3. Directors
and Officers.
The
directors of Xxxxxx-Nevada immediately prior to the Effective Time shall
be the
directors of the Surviving Corporation, each to hold office in accordance
with
the Certificate of Incorporation and the Bylaws of the Surviving Corporation.
The officers of Xxxxxx-Nevada immediately prior to the Effective Time shall
be
the officers of the Surviving Corporation, each to hold office in accordance
with the Certificate of Incorporation and the Bylaws of the Surviving
Corporation.
4. Succession.
From
and after the Effective Time, the Surviving Corporation shall succeed, insofar
as permitted by law, to all of the rights, assets, liabilities and obligations
of Xxxxxx-Nevada; and the title to any real estate vested by deed or otherwise,
in either of Xxxxxx-Nevada or the Surviving Corporation, shall not revert
or be
in any way impaired by reason of the Merger, but all rights of creditors
and all
liens on any property of either of said corporations shall be reserved
unimpaired, and all debts, liabilities and duties of said corporations shall,
as
of the Effective Time, attach to the Surviving Corporation, and may be enforced
against the Surviving Corporation to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it, and any claim
existing or action or proceeding pending by or against either of said
corporations may be prosecuted as if the Merger had not taken place, or the
Surviving Corporation may be substituted in its place. The employees and
agents
of Xxxxxx-Nevada shall become the employees and agents of the Surviving
Corporation and continue to be entitled to the same rights and benefits which
they enjoyed as employees and agents of Xxxxxx-Nevada.
5. Further
Assurances.
From
time to time as and when requested by the Surviving Corporation or by its
successors and assigns, there shall be executed and delivered on behalf of
Xxxxxx-Nevada or the Surviving Corporation, as the case may be, 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, protect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interest, assets, right,
privileges, immunities, powers, franchises and authority of Xxxxxx-Nevada,
and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized, in the name
and
on behalf of Xxxxxx-Nevada, or otherwise, to take any and all such action
and to
execute and deliver any and all such deeds and other instruments.
6. Conversion
of Shares.
(a) At
the
Effective Time, each share of Xxxxxx-Nevada Common Stock issued and outstanding
or held in the treasury of Xxxxxx-Nevada immediately prior thereto (other
than
shares of Xxxxxx-Nevada Common Stock in respect of which dissenters’ rights
shall properly have been exercised in accordance with the NRS) shall, by
virtue
of the Merger and without any action on the part of any holder thereof, be
changed and converted into one fully paid and non assessable share of
Xxxxxx-Delaware Common Stock.
(b) At
the
Effective Time, each option and warrant to purchase shares of Xxxxxx-Nevada
Common Stock outstanding immediately prior to 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 or warrant, as the case may be, to
purchase, upon the same terms and conditions, the number of shares of
Xxxxxx-Delaware Common Stock that is equal to the number of shares of
Xxxxxx-Nevada Common Stock that the holder would have received had the holder
exercised such option or warrant in full immediately prior to the Effective
Time
(whether or not such option or warrant was then exercisable) and the exercise
price per share under each of said options and warrants shall be the exercise
price per share thereunder immediately prior to the Effective Time, unless
otherwise provided in the instrument granting such option or
warrant.
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(c) At
the
Effective Time, the shares of Xxxxxx-Delaware Common Stock currently issued
and
outstanding in the name of Xxxxxx-Nevada shall be canceled and retired, without
any consideration being issued or paid therefor, and shall resume the status
of
authorized and unissued shares of Xxxxxx-Delaware Common Stock, and no shares
of
Xxxxxx-Delaware Common Stock or other securities of the Surviving Corporation
shall be issued in respect thereof.
7. Stock
Certificates.
At the
Effective Time, each certificate representing issued and outstanding shares
of
Xxxxxx-Nevada Common Stock (other than shares of Xxxxxx-Nevada Common Stock
in
respect of which dissenters’ rights shall properly have been exercised in
accordance with the NRS) immediately prior to the Effective Time shall be
deemed
and treated for all purposes as representing the shares of Xxxxxx-Delaware
Common Stock into which such shares of Xxxxxx-Nevada Common Stock have been
converted as provided in this Merger Agreement. Each stockholder of
Xxxxxx-Nevada may, but is not required to, exchange any existing stock
certificates representing shares of Xxxxxx-Nevada Common Stock for stock
certificates representing the same number of shares of Xxxxxx-Delaware Common
Stock. All shares of Xxxxxx-Delaware Common Stock into which shares of
Xxxxxx-Nevada Common Stock shall have been converted pursuant to this Merger
Agreement shall be deemed to have been issued in full satisfaction of all
rights
pertaining to such converted shares. At the Effective Time, the holders of
certificates representing Xxxxxx-Nevada Common Stock outstanding immediately
prior to the Effective Time (except for shares of Xxxxxx-Nevada Common Stock
in
respect of which dissenters’ rights shall have been properly exercised in
accordance with the NRS) shall cease to have any rights with respect to such
stock, and their sole rights shall be with respect to Xxxxxx-Delaware Common
Stock into which their shares of Xxxxxx-Nevada Common Stock have been converted
as provided in this Merger Agreement. At the Effective Time, the stock transfer
books of Xxxxxx-Nevada shall be closed, and no transfer of shares of
Xxxxxx-Nevada Common Stock outstanding immediately prior to the Effective
Time
shall thereafter be made or consummated.
8. Stockholder
Approval.
This
Merger Agreement shall be submitted to a vote of the stockholders of
Xxxxxx-Nevada and the sole stockholder of Xxxxxx-Delaware in accordance with
the
laws of the State of Nevada and the State of Delaware, respectively. In the
event that this Merger Agreement shall be not approved by the requisite vote
of
stockholders of Xxxxxx-Nevada Common Stock entitled to vote thereon, this
Merger
Agreement shall thereupon be terminated without further action of the parties
hereto.
9. Plan
of Reorganization.
This
Agreement is intended to be a plan of reorganization within the meaning of
Section 368(a) of the Code and the Treasury Regulations promulgated
thereunder.
10. Amendment.
Subject
to applicable law, this Merger Agreement may be amended, modified or
supplemented by written agreement of the parties hereto at any time prior
to the
Effective Time with respect to any of the items contained herein.
11. Abandonment.
At any
time before the Effective Time, this Merger Agreement may be terminated and
the
Merger may be abandoned by the Board of Directors of either Xxxxxx-Delaware
or
Xxxxxx-Nevada or both, notwithstanding the approval of this Merger Agreement
by
the stockholders of Xxxxxx-Nevada or the sole stockholder of
Xxxxxx-Delaware.
12. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, except to the extent the laws of the State of Nevada
are
required to apply to the Merger.
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IN
WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf of
Xxxxxx-Nevada and Xxxxxx-Delaware by their respective duly authorized officers
as of the date first written above.
XXXXXX
SYSTEMS, INC.,
a
Nevada corporation
s/XXXXX
XXXXX, M.D., Ph.D
Xxxxx
Xxxxx, M.D., Ph.D
Title: President
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XXXXXX
SYSTEMS, INC.,
a
Delaware corporation
s/XXXXX
XXXXX, M.D., Ph.D
Xxxxx
Xxxxx, M.D., Ph.D
Title: President
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