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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and
entered into as of the 15th day of December, 1997, by and between B.I.
SYSTEMS CORPORATION, a Delaware corporation ("B.I."), and GENOMIC SOLUTIONS
Inc., a Delaware corporation ("Genomic"), pursuant to and in accordance
with the General Corporation Law of the State of Delaware, as amended (the
"Delaware Act").
B.I. and Genomic hereby agree to and do hereby effect the merger of
B.I. with and into Genomic (the "Merger") upon the terms and conditions set
forth herein, effective as of the Effective Time (defined below):
1. CONSTITUENT CORPORATIONS
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a. The name and state of incorporation of each of the constituent
corporations involved in the Merger to be effected hereby are as
follows:
NAME STATE OF INCORPORATION
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Genomic Solutions Inc. Delaware
B.I. Systems Corporation Delaware
b. The surviving corporation of the Merger (the "Surviving
Corporation") shall be Genomic.
2. CAPITAL STOCK
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a. B.I.'s authorized capital stock consists of 15,000,000 shares
of common stock, par value $.001 per share, of which 625,448 shares
are issued and outstanding, and 4,000,000 shares of preferred stock,
par value $.001 per share. A portion of the shares of preferred stock
have been divided into series which currently consist of Series B and
Series M. 2,000,000 shares of preferred stock are designated as Series
B Preferred Stock, of which 1,680,880 shares are issued and
outstanding, and 50,000 shares are designated as Series M Preferred
Stock of which 50,000 shares are issued and outstanding. The shares of
B.I.'s common stock have all of the rights, preferences and
limitations of shares of common stock stated in the Delaware Act. The
rights, preferences, privileges and restrictions granted to and
imposed on the preferred shares are as set forth in the Amended and
Restated Certificate of Incorporation of B.I. attached hereto as
Exhibit A.
b. Genomic's authorized capital stock consists of 40,000,000
shares of common stock, par value $.001 per share, of which zero
shares are issued and outstanding, and 10,000,000 shares of preferred
stock, par value $.001 per share, of which zero shares are issued and
outstanding. A portion of the shares of preferred stock have been
divided into series which currently consist of Series B, Series C and
Series M. 1,680,880 shares of preferred stock are designated as Series
B Preferred Stock, of which zero shares are issued and outstanding,
4,070,339 shares of preferred stock are designated as Series C
Preferred Stock, of which zero shares are issued and outstanding, and
50,000 shares are designated as Series M Preferred Stock of which zero
shares are issued and outstanding. The shares of Genomic's common
stock have all of the rights, preferences and limitations of shares of
common stock stated in the Delaware Act. The rights, preferences,
privileges and restrictions granted to and imposed on the preferred
shares are as set forth in the Amended and Restated Certificate of
Incorporation of Genomic attached hereto as Exhibit B.
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c. The number of authorized and outstanding shares of the capital
stock of B.I. and Genomic, as set forth in subparagraphs (a) and
(b) above, will not change prior to the Effective Time. The Board
of Directors of Genomic has authorized the sale of up to
4,070,339 shares of Series C Preferred Stock, which shares will
not be issued prior to the Effective Time.
3. TERMS AND EFFECT OF MERGER
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a. At the Effective Time, B.I. and Genomic shall cease to exist
separately, and B.I. shall be merged with and into Genomic in accordance
with the provisions of this Agreement and in accordance with the provisions
of and with the effect provided in the Delaware Act.
b. At the Effective Time, upon consummation of the Merger, each holder
of common stock of B.I. shall receive one share of common stock of Genomic
for each share of common stock of B.I., each holder of B.I. Series B
Preferred shall receive one share of Genomic's Series B Preferred for each
share of B.I. Series B Preferred, and each holder of B.I. Series M
Preferred shall receive one share of Genomic Series M Preferred for each
share of B.I. Series M Preferred. Each of the outstanding shares of the
capital stock of B.I. automatically will be canceled and will cease to
exist without any payment being made or due in respect thereof.
c. At the Effective Time, upon consummation of the Merger, all
obligations of B.I. to holders of stock options awarded pursuant to the
B.I. Systems Corporation 1994 Omnibus Equity Incentive Plan shall be
binding on Genomic. Stock options to purchase shares of common stock of
B.I. will be converted into options to purchase an equal number of shares
of common stock of Genomic.
4. CERTIFICATE, BYLAWS, OFFICERS AND DIRECTORS
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The Amended and Restated Certificate of Incorporation and Bylaws of Genomic
in effect at the Effective Time shall be the Certificate of Incorporation and
Bylaws of the Surviving Corporation. The officers, directors and committees of
directors of B.I. on the Effective Time shall be the officers, directors and
committees of directors of the Surviving Corporation. In accordance with the
Certificate of Incorporation of Genomic, the directors shall be divided into
three classes, Class I, Class II and Class III. Initially, Class I shall be
comprised of Xxxxxx X. Xxxxxxx, Class II shall be comprised of J. Xxxxxxx
Xxxxxxxxx and Xxx Xxxxxxxx, and Class III shall be comprised of Xxxxxxx X.
Xxxxxxxx.
5. FILING OF AGREEMENT; EFFECTIVE TIME
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a. To cause the Merger to become effective, a copy of this Agreement
shall be filed with the Secretary of the State of Delaware pursuant to and
in accordance with the Delaware Act.
b. The Effective Time of the merger (the "Effective Time") shall be
the date on which the filing described in subparagraph (a) above shall
occur.
6. ADOPTION AND APPROVAL
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This Agreement has been adopted and approved, by the board of directors of
B.I. at a meeting of the board, by written consent without a meeting by the
shareholders of B.I., and by written consent without a meeting of all of the
directors of Genomic, all as entitled to vote on the Merger in accordance with
the provisions of the Delaware Act.
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7. TERMINATION AND AMENDMENT
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This Agreement may be terminated and the Merger abandoned at any time prior
to the Effective Time, notwithstanding approval of the agreement by the
stockholders of B.I., by the unanimous mutual written consent of the respective
boards of directors of Genomic and B.I. If this Agreement is terminated, then
this Agreement shall thereafter become void and have no effect, and no party to
this Agreement or any affiliate of any party to this Agreement shall have any
liability to any other party to this Agreement or its shareholders, directors,
officers or affiliates in respect of this Agreement or the Merger. The
respective boards of directors of Genomic and B.I. may, by unanimous consent,
amend this Agreement at any time prior to the Effective Time, provided that an
amendment made subsequent to the approval of the B.I. stockholders is limited by
Section 251(d) of the Delaware Act.
8. COPIES OF THIS AGREEMENT
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An original, executed copy of this Agreement shall remain on file at
Genomic's principal place of business, the address of which is 000 Xxxx Xxxxx,
Xxxxx 00, Xxx Xxxxx, Xxxxxxxx 00000, and upon request and without cost, Genomic
shall furnish a copy thereof to any shareholder of B.I. or Genomic.
9. MERGER PERMITTED UNDER DELAWARE LAW
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This Merger is permitted under, and has been effectuated in accordance
with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
B.I. SYSTEMS CORPORATION, GENOMIC SOLUTIONS INC.
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, President
Attested by: /s/ Xxxxxx X. Xxxxxxxxxx Attested by: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxx,
Secretary Secretary
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