EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of May 12, 2003, by and between
Pharmaceutical Resources, Inc., a New Jersey corporation (the "Company"), and
Pharmaceutical Resources, Inc., a wholly-owned Delaware subsidiary of the
Company newly-formed solely for the purpose of reincorporating the Company in
the State of Delaware ("PRI (DEL)").
The Company owns all of the issued and outstanding shares of capital stock
of PRI (DEL). In consideration of the mutual promises, covenants and agreements
contained herein, the Company and PRI (DEL), intending to be legally bound,
hereby agree as set forth below.
1. Merger of the Company with and into PRI (DEL). At the Effective Time, as
defined in Section 5 of this Agreement and Plan of Merger, (a) the Company shall
merge with and into PRI (DEL), (b) the separate existence of the Company shall
cease to exist and (c) PRI (DEL) shall be the surviving corporation in the
merger (the "Surviving Corporation") and shall continue its existence under
Delaware law (the "Merger").
2. Certificate of Incorporation and Bylaws of the Surviving Corporation.
The Certificate of Incorporation and Bylaws of PRI (DEL) at the Effective Time
shall continue to be the Certificate of Incorporation and Bylaws of the
Surviving Corporation, respectively, subject to any future amendments or
deletions thereto in accordance with applicable law.
3. Directors and Officers of the Surviving Corporation. The directors and
officers of the Company immediately prior to the Effective Time shall become the
respective directors and officers of the Surviving Corporation, who shall serve
in accordance with applicable law and until their respective successors are duly
qualified and elected.
4. Cancellation, Conversion and Continuance of Shares.
(a) PRI (DEL) Shares. At the Effective Time, all shares of capital
stock of PRI (DEL) owned by the Company immediately prior to the consummation of
the Merger shall be cancelled.
(b) Company Shares. Each issued and outstanding share, and each
share then held in the treasury, of the common stock of the Company shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be automatically converted at the Effective Time into one share of common stock
of PRI (DEL). The terms and conditions of each stock option and warrant to
purchase shares of the Company's common stock outstanding immediately prior to
the consummation of the Merger shall remain the same, except that such option or
warrant shall be an option or warrant, as the case may be, to purchase shares of
PRI (DEL) common stock.
The consummation of the Merger shall not be deemed a transaction
that constitutes a "change of control," as such term is defined in the stock
option plans or agreements of the Company under which options to purchase shares
of its common stock have been granted. Accordingly, the terms of outstanding
stock options of the Company shall not be affected as a result of the Merger.
It will not be necessary for shareholders of the Company to exchange
their existing stock certificates representing shares of common stock of the
Company for stock certificates representing shares of PRI (DEL) common stock. In
the event, however, such shareholders decide to effect such an exchange, they
shall receive shares of PRI (DEL) common stock possessing, subject to
differences in applicable law, the same general rights as the common stock of
the Company.
5. Approval, Filing and Effective Time. This Agreement and Plan of Merger
shall be adopted and approved by the Company and PRI (DEL) in the manner
required by the Delaware General Corporation Law, as amended (the "DGCL"), and
the New Jersey Business Corporation Act, as amended (the "NJBCA"). After this
Agreement and Plan of Merger has been adopted and approved, and so long as it
has not been terminated pursuant to Section 6 hereof, the Company and PRI (DEL),
upon obtaining the requisite Company shareholder approval under the NJBCA, shall
file a certificate of merger with the Secretary of State of New Jersey and a
certificate of ownership and merger with the Secretary of State of the State of
Delaware. The Merger shall become effective upon the filing of such certificate
with the Secretary of State of Delaware (the "Effective Time").
6. Amendment; Termination. This Agreement and Plan of Merger may be amended
or terminated at any time prior to the Effective Time by action of the Board of
Directors of both the Company and PRI (DEL), except as otherwise prohibited by
the NJBCA or the DGCL, notwithstanding the adoption or approval contemplated by
Section 5 hereof.
7. Further Assurances. From time to time, as and when required by the
Surviving Corporation or its successors or assigns, there shall be executed and
delivered on behalf of the Company such documents and other instruments, and
there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary to: (i) cause the
Surviving Corporation to have its common stock registered with the Securities
and Exchange Commission under Section 12(b) of the Securities Exchange Act of
1934, as amended, and to have its common stock listed on the New York Stock
Exchange, (ii) vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation, the title to and possession of all property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of the
Company and (iii) otherwise carry out the purposes of this Agreement and Plan of
Merger. The executive officers and directors of the Surviving Corporation are
fully authorized in the name and on behalf of the Company or otherwise, to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
8. Service of Process; Appointment of Agent. The Surviving Corporation
hereby agrees that it may be sued in the State of New Jersey for any prior
obligation of the Company, any prior obligation of any constituent foreign
corporation qualified under Section 14A:13-4 of the NJBCA, and any obligations
hereafter incurred by the Surviving Corporation, so long as any liability
remains outstanding against the Company in the State of New Jersey, and it
hereby irrevocably appoints the Secretary of State of New Jersey as its agent to
accept service of process in any action for the enforcement of any such
obligation, including taxes.
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IN WITNESS WHEREOF, the Company and PRI (DEL) have executed this Agreement
and Plan of Merger as of the day and year first above written.
PHARMACEUTICAL RESOURCES, INC.
(A New Jersey corporation)
By: /s/ DENNIS J. O'CONNOR
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Name: Dennis J. O'Connor
Title: Vice President, CFO and
Secretary
PHARMACEUTICAL RESOURCES, INC.
(A Delaware corporation)
By: /s/ JOSEPH SCHOTT
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Name: Joseph Schott
Title: Assistant Secretary
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