EXHIBIT 99.1
AGREEMENT AND PLAN OF MERGER
PILOT THERAPEUTICS HOLDINGS, INC.,
A DELAWARE CORPORATION,
AND
INTERALLIED GROUP, INC.,
A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of October 10, 2001 (the
"Agreement"), is entered into by and between PILOT THERAPEUTICS HOLDINGS, INC.,
a Delaware corporation ("Pilot") with its principal address at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000, and INTERALLIED GROUP,
INC., a Nevada corporation ("ILRG") with its principal address at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000. Pilot and ILRG are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. Pilot is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 50,000,000
shares, $0.001 par value, of common stock. As of October 10, 2001, 10 shares of
Pilot common stock were issued and outstanding, all of which are held by ILRG.
B. ILRG is a corporation duly organized and existing under the
laws of the State of Nevada and has an authorized capital of 20,000,000 shares,
$0.01 par value, of common stock and 5,000,000 shares, $0.001 par value of
preferred stock. As of October 10, 2001, 9,724,971 shares of ILRG common stock
were issued and outstanding and no shares of preferred stock were issued and
outstanding.
C. The Board of Directors of ILRG has determined that, for the
purpose of effecting the reincorporation of ILRG in the State of Delaware, it is
advisable and in the best interests of ILRG and its stockholders that ILRG merge
with and into Pilot upon the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants set forth herein, Pilot and ILRG
hereby agree, subject to the terms and conditions hereinafter set forth, as
follows:
ARTICLE I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the Nevada Private Corporation Law,
ILRG shall be merged with and into Pilot (the "Reincorporation Merger"), the
separate existence of ILRG shall cease and Pilot shall survive the
Reincorporation Merger and shall continue to be governed by the laws of
the State of Delaware, and Pilot shall be, and is herein sometimes referred to
as, the "Surviving Corporation," and the name of the Surviving Corporation shall
be "Pilot Therapeutics Holdings, Inc."
1.2 Filing and Effectiveness. Consummation of the Reincorporation
Merger shall be subject to the completion of the following actions:
(a) This Agreement and the Reincorporation Merger shall
have been adopted and approved by the stockholders of each Constituent
Corporation in accordance with the requirements of the Delaware General
Corporation Law and the Nevada Private Corporation Law;
(b) All of the conditions precedent to the consummation
of the Reincorporation Merger specified in this Agreement shall have been
satisfied or duly waived by the party entitled to the satisfaction thereof;
(c) The Board of Directors of ILRG shall not have
determined that the number of shares of ILRG common stock the holders of which
have validly exercised dissenters' rights pursuant to the Nevada Private
Corporation Law in connection with the Reincorporation Merger is excessive, in
the sole and absolute discretion of the Board of Directors of ILRG;
(d) Any required notice or waiting period before the
Reincorporation Merger may be consummated, pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended, and all regulations promulgated
thereunder, shall have expired;
(e) An executed Certificate of Merger or an executed,
acknowledged and certified 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
(f) Executed Articles of Merger or an executed
counterpart of this Agreement meeting the requirements of the Nevada Private
Corporation Law shall have been filed with the Secretary of State of the State
of Nevada.
The date and time when the Reincorporation Merger shall become
effective in accordance with the Delaware General Corporation Law and the Nevada
Private Corporation Law is herein called the "Effective Date of the Merger."
1.3 Effect of the Reincorporation Merger. Upon the Effective Date
of the Merger, the separate existence of ILRG shall cease and Pilot, 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
ILRG's Boards of Directors, (iii) shall succeed, without other transfer, to all
of the assets, rights, powers and property of ILRG 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 ILRG in the same manner as if Pilot had itself incurred them, all
as more fully provided under the applicable provisions of the Delaware General
Corporation Law and the Nevada Private Corporation Law.
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ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation
of Pilot 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 Pilot 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 ILRG
immediately prior to the Effective Date of the Merger shall become 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 by the Certificate of Incorporation or the Bylaws of the Surviving
Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1 ILRG Common Stock. Upon the Effective Date of the Merger, each
share of ILRG common stock, $0.01 par value, issued and outstanding immediately
prior thereto shall, by virtue of the Reincorporation Merger and without any
action by the Constituent Corporations, the holder of such shares or any other
person, be changed and converted into one fully paid and nonassessable share of
common stock, $0.001 par value, of the Surviving Corporation. There are no
outstanding shares of preferred stock of ILRG, par value $0.001 per share.
3.2 ILRG Options and Other Outstanding Stock-Based Grants.
(a) Upon the Effective Date of the Merger, each
outstanding and unexercised option or other right to purchase or security
convertible into ILRG common stock shall become an option or right to purchase
or a security convertible into Pilot common stock on the basis of one share of
Pilot common stock for each share of ILRG common stock issuable pursuant to such
option, 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 ILRG option, stock purchase right or convertible security
on the Effective Date of the Merger. There are no options or stock purchase
rights for or securities convertible into the preferred stock of ILRG, par value
$0.001 per share.
(b) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue ILRG's Stock Option Plan (as frozen) and
2001 Stock Incentive Plan and shall reserve a number of shares of Pilot common
stock for issuance under those plans equal to the number of shares of ILRG
common stock so reserved immediately prior to the Effective Date of the Merger.
The execution of this Agreement shall constitute an amendment to those plans to
reflect the Surviving Corporation as the corporation referenced in such employee
benefit plans notwithstanding the actual references therein to ILRG.
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(c) A number of shares of Pilot common stock also shall
be reserved for issuance upon the exercise of any other options, stock purchase
rights and convertible securities equal to the number of shares of ILRG common
stock so reserved immediately prior to the Effective Date of the Merger.
3.3 ILRG Benefit Plans. Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue all employee benefit plans of
ILRG. The execution of this Agreement shall constitute an amendment to each of
the employee benefit plans to reflect the Surviving Corporation as the
corporation referenced in such employee benefit plans notwithstanding the actual
references therein to ILRG.
3.4 Pilot Common Stock. Upon the Effective Date of the Merger,
each share of common stock, $0.01 par value, of Pilot issued and outstanding
immediately prior thereto shall, by virtue of the Reincorporation Merger and
without any action by Pilot, the holder of such shares or any other person, be
canceled without payment of consideration and returned to the status of
authorized but unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of ILRG
common stock shall 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 such holders'
shares of ILRG common stock were converted as herein provided. Unless and until
so surrendered, each outstanding certificate theretofore representing shares of
ILRG common stock shall be deemed for all purposes to represent the number of
whole shares of the Surviving Corporation's common stock into which such shares
of ILRG common stock were converted in the Reincorporation Merger. The
registered owner on the books and records of ILRG or the Exchange Agent of any
shares of stock represented by 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 Reincorporation Merger shall bear the same legends, if any,
with respect to the restrictions on transferability as the certificates of ILRG
so converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws. If any certificate for shares of the Surviving Corporation common 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 that the
person requesting such transfer pay to the Surviving Corporation or the Exchange
Agent any transfer or other taxes payable by reason of the 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 the Surviving
Corporation that such tax has been paid or is not payable.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of ILRG. ILRG hereby represents
and warrants that it:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada, and has all the
requisite power and authority to own, lease and operate its properties and
assets and to carry on its business as it is now being conducted;
(b) is duly qualified to do business as a foreign person,
and is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification necessary;
(c) is not in violation of any provisions of its articles
of incorporation or bylaws; and
(d) has full corporate power and authority to execute and
deliver this Agreement and consummate the Reincorporation Merger and the other
transactions contemplated by this Agreement.
4.2 Representations and Warranties of Pilot. Pilot hereby
represents and warrants that it:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has all the
requisite power and authority to own, lease and operate its properties and
assets and to carry on its business as it is now being conducted;
(b) is duly qualified to do business as a foreign person,
and is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification necessary;
(c) is not in violation of any provisions of its
certificate of incorporation or bylaws; and
(d) has full corporate power and authority to execute and
deliver this Agreement and consummate the Reincorporation Merger and the other
transactions contemplated by this Agreement.
ARTICLE V
TAX CONSEQUENCES
It is the intent of the Constituent Corporations that (i) the
Reincorporation Merger will constitute a "reorganization" within the meaning of
each of sections 368(a)(1)(A) and 368(a)(1)(F) of the Internal Revenue Code of
1986, as amended (the "Code"), and (ii) this Agreement will constitute a "plan
of reorganization" for purposes of sections 354 and 368 of the
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Code. The Constituent Corporations shall treat and report the transactions
consistently with this intention for all purposes; provided, however, that the
Constituent Corporations intend that ILRG and its counsel, and Pilot and its
counsel, shall have no liability to the stockholders of either of the
Constituent Corporations if, for any reason, the Reincorporation Merger does not
constitute a reorganization within the meaning of sections 368(a)(1)(A) or
368(a)(1)(F) of the Code.
ARTICLE VI
GENERAL
6.1 Entire Agreement; Modification. This Agreement and the
documents referred to herein are intended by the parties as a final expression
of their agreement with respect to the subject matter hereof, and are intended
as a complete and exclusive statement of the terms and conditions of that
agreement, and there are no other agreements or understandings, written or oral,
among the parties, relating to the subject matter hereof. This Agreement
supercedes all prior agreements and understandings, written or oral, among the
parties with respect to the subject matter hereof.
6.2 Further Assurances. From time to time, as and when required by
Pilot or by its successors or assigns, there shall be executed and delivered on
behalf of ILRG such deeds and other instruments, and there shall be taken or
caused to be taken by Pilot and ILRG 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 Pilot the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of ILRG
and otherwise to carry out the purposes of this Agreement, and the officers and
directors of Pilot are fully authorized in the name and on behalf of ILRG or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
6.3 Covenants of Pilot. Pilot covenants and agrees that it will,
on or before the Effective Date of the Merger take such other actions as may be
required by Delaware law or Nevada law to accomplish the Reincorporation Merger,
including appointing an agent for service of process in the State of Nevada if
and to the extent required under provisions of Nevada law.
6.4 Abandonment. At any time before the filing a Certificate of
Merger with the Secretary of State of the State of Delaware and Articles of
Merger with the Secretary of State of the State of Nevada, this Agreement may be
terminated and the Reincorporation Merger may be abandoned for any reason
whatsoever, including without limitation pursuant to Section 1.2(c), by the
Board of Directors of either ILRG or Pilot, or both, notwithstanding the
approval of this Agreement by the stockholders of ILRG or by the sole
stockholder of Pilot, or by both.
6.5 Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of
Articles of Merger and a Certificate of Merger with the Secretaries of State of
the States of Nevada and Delaware, respectively, provided that an amendment made
subsequent to the adoption and approval of this Agreement and the
Reincorporation Merger by the stockholders 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
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Surviving Corporation to be effected by the Reincorporation Merger, or (3) alter
or change any of the terms and conditions of this Agreement, if in the case of
clause (2) or (3) such alteration or change would adversely affect the holders
of any class of shares or series thereof of such Constituent Corporation.
6.6 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
0000 Xxxxxx Xxxxxx, in the City of Xxxxxxxxxx, Xxxxxxxx 00000, County of New
Castle, and The Corporation Trust Company is the registered agent of the
Surviving Corporation at such address.
6.7 Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000, and copies thereof will be
furnished to any stockholder and to any creditor of either Constituent
Corporation, upon request and without cost.
6.8 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
Nevada Private Corporation Law.
6.9 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.
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IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
PILOT THERAPEUTICS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xx. Xxxxx Xxxxxxx III, PhD
----------------------------------------
Name: Xx. Xxxxx Xxxxxxx III, PhD
Title: President
ATTEST:
By: /s/ Xxxx Xxxxxxx-Xxxxx
----------------------------------------
Name: Xxxx Xxxxxxx-Xxxxx
Title: Secretary
INTERALLIED GROUP, INC.,
a Nevada corporation
By: /s/ Xx. Xxxxx Xxxxxxx III, PhD
----------------------------------------
Name: Xx. Xxxxx Xxxxxxx III, PhD
Title: President
ATTEST:
By: /s/ Xxxx Xxxxxxx-Xxxxx
----------------------------------------
Name: Xxxx Xxxxxxx-Xxxxx
Title: Secretary
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