1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of __________, 1996 by and between ALANEX CORPORATION, a
California corporation ("Alanex California"), and ALANEX CORPORATION, a Delaware
corporation ("Alanex Delaware"). Alanex California and Alanex Delaware are
sometimes referred to as the "Constituent Corporations."
The authorized capital stock of Alanex California consists of thirty
million (30,000,000) shares of Common Stock and ten million (10,000,000) shares
of Preferred Stock. The authorized capital stock of Alanex Delaware consists of
forty million (40,000,000) shares of Common Stock, $.001 par value, and ten
million (10,000,000) shares of Preferred Stock, $.001 par value.
The directors of the Constituent Corporations deem it advisable and to
the advantage of said corporations that Alanex California merge into Alanex
Delaware upon the terms and conditions herein provided.
Following the Merger (as defined below) the subsidiaries of Alanex
California shall be the subsidiaries of Alanex Delaware.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Alanex California
shall merge into Alanex Delaware on the following terms, conditions and other
provisions:
1. TERMS AND CONDITIONS
(a) MERGER. Alanex California shall be merged with and into Alanex
Delaware (the "Merger"), and Alanex Delaware shall be the surviving corporation
(the "Surviving Corporation") effective at 12:00 p.m. (Eastern Standard Time) on
_______, 1996 (the "Effective Time").
(b) SUCCESSION. At the Effective Time, Alanex Delaware shall
continue its corporate existence under the laws of the State of Delaware, and
the separate existence and corporate organization of Alanex California, except
insofar as it may be continued by operation of law, shall cease.
(c) TRANSFER OF ASSETS AND LIABILITIES. At the Effective Time, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
and singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each
1.
2
of the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
(d) COMMON STOCK OF ALANEX CALIFORNIA AND ALANEX DELAWARE. At the
Effective Time, by virtue of the Merger and without any further action on the
part of the Constituent Corporations or their shareholders, (i) each share of
Common Stock of Alanex California issued and outstanding immediately prior
thereto shall be exchanged for one fully paid and nonassessable share of Common
Stock of Alanex Delaware; and (ii) each share of Common Stock of Alanex Delaware
issued and outstanding immediately prior thereto shall be canceled and returned
to the status of authorized but unissued shares.
(e) PREFERRED STOCK OF ALANEX CALIFORNIA. At the Effective Time,
no Preferred Stock of Alanex California will be outstanding.
(f) STOCK CERTIFICATES. At and after the Effective Time, all of
the outstanding certificates which prior to that time represented shares of the
Common Stock and Preferred Stock of Alanex California shall be deemed for all
purposes to evidence ownership of and to represent the shares of Alanex Delaware
into which the shares of Alanex California represented by such certificates have
been converted as herein provided and shall be so registered on the books and
records of the Surviving Corporation or its transfer agents. The registered
owner of any such outstanding stock certificate shall, until such certificate
shall have been surrendered for transfer or conversion or otherwise accounted
for to the Surviving Corporation or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividend and other distributions upon the shares of Alanex Delaware evidenced
by, such outstanding certificate as above provided.
2.
3
(g) WARRANTS OF ALANEX CALIFORNIA. At and after the Effective
Time, the outstanding warrants which prior to that time represented warrants of
Alanex California shall be deemed for all purposes to evidence ownership of and
to represent warrants of Alanex Delaware and shall be so registered on the books
and records of the Surviving Corporation or its transfer agents.
(h) OPTIONS OF ALANEX CALIFORNIA. At and after the Effective Time,
the outstanding and unexercised portions of all options to purchase Common Stock
of Alanex California, including without limitation all options outstanding under
the 1993 Stock Plan, the 1996 Equity Incentive Plan and any options issued
outside such plans, shall become options to purchase the same number of shares
of Common Stock of Alanex Delaware.
(i) EMPLOYEE BENEFIT PLANS. At the Effective Time, the Surviving
Corporation shall assume all obligations of Alanex California under any and all
employee benefit plans in effect as of the Effective Time with respect to which
employee rights or accrued benefits are outstanding as of such time.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
(a) CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Alanex Delaware in effect at the Effective Time
shall continue to be the Certificate of Incorporation and Bylaws of the
Surviving Corporation.
(b) DIRECTORS. The directors of Alanex California immediately
preceding the Effective Time shall become the directors of the Surviving
Corporation at and after the Effective Time to serve until the expiration of
their terms and until their successors are elected and qualified.
(c) OFFICERS. The officers of Alanex California immediately
preceding the Effective Time shall become the officers of the Surviving
Corporation at and after the Effective Time to serve at the pleasure of its
Board of Directors.
3. MISCELLANEOUS
(a) FURTHER ASSURANCES. From time to time, and when required by
the Surviving Corporation or by its successors and assigns, there shall be
executed and delivered on behalf of Alanex California such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other action, as shall be appropriate or necessary in order to vest or
perfect in or to conform of record or otherwise, in the Surviving Corporation
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Alanex California
and otherwise to carry out the purposes of this Merger Agreement, and the
officers and
-3-
4
directors of the Surviving Corporation are fully authorized in the name and on
behalf of Alanex California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
(b) AMENDMENT. At any time before or after approval by the
shareholders of Alanex California, this Merger Agreement may be amended in any
manner (except that, after the approval of the Merger Agreement by the
shareholders of Alanex California, the principal terms may not be amended
without the further approval of the shareholders of Alanex California) as may be
determined in the judgment of the respective Board of Directors of Alanex
Delaware and Alanex California to be necessary, desirable, or expedient in order
to clarify the intention of the parties hereto or to effect or facilitate the
purpose and intent of this Merger Agreement.
(c) CONDITIONS TO MERGER. The obligation of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
(i) the Merger shall have been approved by the
shareholders of Alanex California in accordance with applicable provisions of
the General Corporation Law of the State of California; and
(ii) Alanex California, as sole stockholder of Alanex
Delaware, shall have approved the Merger in accordance with the General
Corporation Law of the State of Delaware; and
(iii) any and all consents, permits, authorizations,
approvals, and orders deemed in the sole discretion of Alanex California to be
material to consummation of the Merger shall have been obtained.
(d) ABANDONMENT OR DEFERRAL. 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 Constituent Corporation or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
either Constituent Corporation or the prior filing of this Merger Agreement with
the Secretary of State of the State of Delaware, or the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion of the
Boards of Directors of the Constituent Corporations, such action would be in the
best interest of such corporations. In the event of termination of this Merger
Agreement, this Merger Agreement shall become void and of no further force or
effect and there shall be no liability on the part of either Constituent
Corporation or its Board of Directors or shareholders with respect thereto,
except that Alanex California shall pay all
4.
5
expenses incurred in connection with the Merger or in respect of this Merger
Agreement or relating thereto.
(e) COUNTERPARTS. In order to facilitate the filing and recording
of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original, and when taken
together shall constitute one and the same instrument.
5.
6
IN WITNESS WHEREOF, this Merger Agreement, having first been fully
approved by the Board of Directors of Alanex California and Alanex Delaware, is
hereby executed on behalf of each said corporation and attested by their
respective officers thereunto duly authorized.
ALANEX CORPORATION,
a California corporation
By:_____________________________
Marvin R. Brown, M.D.
President and
Chief Executive Officer
ATTEST:
____________________________
Michelle A. Youngers
Chief Financial Officer
ALANEX CORPORATION,
a Delaware corporation
By:____________________________
Marvin R. Brown, M.D.
President and
Chief Executive Officer
6.