PLAN OF MERGER AND AGREEMENT
of
PROTALEX, INC.
a New Mexico corporation
with and into
PROTALEX, INC.
a Delaware corporation
------------
PROTALEX, INC.
a Delaware corporation
to be the surviving corporation
Plan of Merger and Agreement (this "Agreement") by and between Protalex,
Inc., a New Mexico corporation (the "New Mexico Corporation"), and Protalex,
Inc., a Delaware corporation (the "Delaware Corporation" or "Surviving
Corporation"), said corporations being hereinafter sometimes referred to
collectively as the "Constituent Corporations";
WITNESSETH:
WHEREAS, the Delaware Corporation is a corporation duly organized and
existing under laws of the State of Delaware;
WHEREAS, the New Mexico Corporation is a corporation duly organized and
existing under the laws of the State of New Mexico;
WHEREAS, on the date of this Agreement, the New Mexico Corporation has
authority to issue 40,000,000 shares of common stock, no par value, of which
16,695,034 shares are issued and outstanding and entitled to vote to approve
this Agreement;
WHEREAS, on the date of this Agreement, the Delaware Corporation has
authority to issue 40,000,000 shares of common stock, $0.00001 par value, of
which 100 shares are issued and outstanding, entitled to vote to approve this
Agreement, and owned by the New Mexico Corporation;
WHEREAS, the respective Boards of Directors of the New Mexico Corporation
and the Delaware Corporation have determined that it is advisable that the New
Mexico Corporation be merged with and into the Delaware Corporation, in
accordance with the applicable provisions of the laws of the State of New Mexico
and the State of Delaware permitting such merger; and
WHEREAS, the respective Boards of Directors of the New Mexico Corporation
and the Delaware Corporation have approved this Agreement and the Board of
Directors of the New Mexico Corporation has directed that this Agreement be
submitted to a vote of its respective shareholders;
NOW THEREFORE, in consideration of the foregoing and of the agreements,
covenants, and provisions hereinafter set forth, the New Mexico Corporation and
the Delaware Corporation do hereby agree as follows:
ARTICLE I
New Mexico Corporation and the Delaware Corporation shall be merged into a
single corporation, in accordance with applicable provisions of the laws of the
State of New Mexico and the State of Delaware, by the New Mexico Corporation
merging into the Delaware Corporation, which shall be the surviving corporation.
ARTICLE II
Upon the Effective Date (as hereinafter defined):
1. The New Mexico Corporation shall be merged with and into the Delaware
Corporation, shall be the surviving corporation, and the separate existence of
the New Mexico Corporation shall cease.
2. The Surviving Corporation shall thereupon and thereafter possess all of
the rights, privileges, immunities, powers, purposes and franchises, of a public
as well as of a private nature, of each of the Constituent Corporations and all
property, real, personal and mixed, all debts due on whatever account, including
subscriptions to shares and all other choses in action, and all and every other
asset or interest of, or belonging to, or due to each of the Constituent
Corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed, and the title to all
property, real, personal or mixed, or any interest therein, vested in either of
the Constituent Corporations shall not revert or be in any way impaired by
reason of the merger.
3. The Surviving Corporation shall thenceforth assume and be liable for
all of the liabilities, obligations and penalties of each of the Constituent
Corporations, and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations, or any shareholder, officer or
director of either of the Constituent Corporations, may be prosecuted to
judgment as if the merger had not taken place, or the Surviving Corporation may
be substituted in its place; and neither the rights of creditors nor any liens
upon the property of either of the Constituent Corporations shall be impaired by
the merger, but shall attach to the Surviving Corporation as if incurred or
contracted by it. Without limiting the generality of the foregoing: (i) the
Surviving Corporation shall thenceforth be bound by the Stock Option Plan of the
New Mexico Corporation (the "Stock Option Plan"), and shall for all purposes be
recognized as the "Company" in such Stock Option Plan, and (ii) the Surviving
Corporation shall thenceforth be bound by the terms of each of the stock option
agreements entered into between the New Mexico Corporation and the optionees
thereunder pursuant to the Stock Option Plan, and shall for all purposes be
recognized as the "Company" in such agreements.
4. Shares of common stock, $0.00001 par value, of the Surviving
Corporation shall be made available for future grants under the Stock Option
Plan in an amount equal to the number of shares of common stock, no par value,
of the New Mexico Corporation available for future grants under the Stock Option
Plan on the Effective Date.
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5. The Certificate of Incorporation of the Delaware Corporation as in
effect on the Effective Date shall be and remain the Certificate of
incorporation of the Surviving Corporation until the same shall be appropriately
amended or repealed.
6. The By-laws of the Delaware Corporation as in effect on the Effective
Date shall be and remain the By-laws of the Surviving Corporation until the same
shall be properly amended or repealed.
7. The directors and officers of the Delaware Corporation shall remain the
same as they were immediately prior to the Effective Date.
ARTICLE III
The Surviving Corporation shall comply with the provisions of the New
Mexico Business Corporation Act with respect to foreign corporations and hereby
agrees that (i) it may be served with process in the State of New Mexico in any
proceeding for the enforcement of any obligation of the New Mexico Corporation
and in any proceeding for the enforcement of the rights of a dissenting
shareholder of the New Mexico Corporation against the Surviving Corporation;
(ii) the Secretary of State of New Mexico is irrevocably appointed as its agent
to accept service of process in any such proceeding; and (iii) it will promptly
pay to the dissenting shareholders, if any, of the New Mexico Corporation the
amount, if any, to which they shall be entitled under the provisions of the New
Mexico Business Corporation Act pertaining to the rights of dissenting
shareholders.
ARTICLE IV
The manner and basis of converting the shares of the New Mexico
Corporation into shares of the Surviving Corporation shall be as follows:
1. Upon the Effective Date, the 100 shares of common stock, $0.00001 par
value, of the Delaware Corporation owned by the New Mexico Corporation
immediately prior to the Effective Date shall be cancelled and retired, all
rights in respect thereof shall cease and the capital of the Surviving
Corporation shall be reduced by the $100 of capital applicable to such shares.
2. Upon the Effective Date each share of common stock, no par value, of
the New Mexico Corporation issued and outstanding shall thereupon, and without
the surrender of stock certificate or any other action, be converted into one
fully paid and non-assessable, issued and outstanding share of common stock,
$0.00001 par value, of the Surviving Corporation. Outstanding certificates
representing shares of common stock of the New Mexico Corporation shall
thenceforth be deemed to represent the same number of shares of common stock of
the Surviving Corporation, and the holder thereof shall have all of the same
rights which he would have had if such certificates had been issued by the
Surviving Corporation.
3. Upon the Effective Date, all outstanding options or warrants to buy
common stock, no par value, of the New Mexico Corporation shall become,
respectively, options or warrants to buy the same number of shares of common
stock, $0.00001 par value, of the Surviving Corporation.
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4. After the Effective Date, each holder of a certificate representing
outstanding shares of common stock, no par value, of the New Mexico Corporation
may, but shall not be required to, surrender the same to the Surviving
Corporation, and upon such surrender such holder shall be entitled to receive a
certificate or certificates issued by the Surviving Corporation for the number
of shares of common stock, $0.00001 par value, represented by the surrendered
certificate; provided, however, it shall be a condition of any such issuance
that the certificate so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the person requesting such issuance shall pay
to the Surviving Corporation or its transfer agent any transfer or other taxes
required by reason of the issuance of certificates representing common stock,
$0.00001 par value, of the Surviving Corporation in a name other than that of
the registered holder of the certificate surrendered, or establish to the
satisfaction of the Surviving Corporation or its transfer agent that such tax
has been paid or is not applicable. The Surviving Corporation shall be entitled
to rely upon the stock records of the New Mexico Corporation as to the ownership
of its shares of common stock, no par value, at the Effective Date.
5. The New Mexico Corporation will not make any transfers of certificates
representing outstanding shares of its common stock, no par value, of the New
Mexico Corporation on its books after the Effective Date.
ARTICLE V
Upon the Effective Date:
1. the respective, assets of the New Mexico Corporation and the Delaware
Corporation shall be taken up or continued on the books of the Surviving
Corporation in the amounts at which such assets shall have been carried on their
respective books immediately prior to the Effective Date, except those assets
which are shares to be cancelled as provided herein;
2. the respective liabilities and reserves of the New Mexico Corporation
and the Delaware Corporation (excluding capital stock, paid-in surplus and
retained earnings) shall be taken up or continued on the books of the Surviving
Corporation in the amounts at which such liabilities and reserves shall have
been carried on their respective books immediately prior to the Effective Date;
and
3. the capital stock, paid-in surplus and retained earnings of the New
Mexico Corporation shall be taken up on the books of the Surviving Corporation
as capital stock, paid-in surplus and retained earnings, respectively, in the
amounts at which the same shall be carried on the books of the New Mexico
Corporation immediately prior to the Effective Date, except with respect to
shares to be cancelled as provided herein.
ARTICLE VI
The Delaware Corporation, as the Surviving Corporation, shall pay all
expenses of carrying this Agreement into effect and accomplishing the merger
herein provided for.
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ARTICLE VII
The New Mexico Corporation agrees that from time to time as and when
requested by the Surviving Corporation, its successors or assigns, it will
execute, acknowledge, deliver and file all proper deeds, assurances,
assignments, bills of sale and other documents, and do all other acts and
things, or cause the same to be done, necessary or proper in order to vest,
perfect or confirm in the Surviving Corporation title to and possession of all
the property, rights, privileges, powers and franchises of the New Mexico
Corporation, or otherwise necessary or proper to carry out the intent and
purposes of this Agreement.
ARTICLE VIII
This Agreement shall be submitted by the New Mexico Corporation to its
shareholders as provided by New Mexico and Delaware law. This Agreement shall
take effect, and shall be deemed to be the Plan of Merger and Agreement of the
Constituent Corporations, upon the approval or adoption thereof by the
shareholders of the New Mexico Corporation in accordance with the laws of the
State of New Mexico and the State of Delaware, and upon the execution,
acknowledgment, filing and recording of such documents and the doing of such
acts and things as shall be required for accomplishing the merger under the laws
of the States New Mexico and Delaware. The term "Effective Date" as used in this
Agreement shall be the point in time at which the last act required to make the
merger effective under the respective laws of such states shall have been
performed.
ARTICLE IX
Anything herein or elsewhere to the contrary notwithstanding, this
Agreement may be abandoned for any reason whatsoever by the New Mexico
Corporation by appropriate resolution of its Board of Directors at any time
prior to the time that this Agreement (or a certificate in lieu thereof) filed
with the Delaware Secretary of State becomes effective, notwithstanding approval
or adoption of this Agreement by the shareholders of the New Mexico Corporation.
ARTICLE X
At any time prior to the time that this Agreement (or certificate in lieu
thereof) is filed with the Delaware Secretary of State becomes effective,
whether before or after approval and adoption by the shareholders of the New
Mexico Corporation, this Agreement may be amended in any manner (except that the
provisions of each of Article IV, Paragraph 2, Article II, Paragraph 5, or any
other terms and conditions of this Agreement if such alteration or change would
adversely affect the shareholders of the New Mexico Corporation may not be
amended without the approval of the shareholders of the New Mexico Corporation)
as may be determined in the judgment of the respective Boards of Directors of
the Constituent Corporations to be necessary, desirable, or expedient in order
to clarify the intention of the parties hereto or to effect or facilitate the
filing, recording or official approval of this Agreement and the merger provided
for herein, in accordance with the purposes and intent of this Agreement.
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IN WITNESS WHEREOF, each of the Constituent Corporations has caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be hereto affixed as of the 26th day of October, 2004.
PROTALEX, INC., a New Mexico corporation
By: /s/ Steven H. Kane
-------------------------------------
Steven H. Kane
Its: President
PROTALEX, INC., a Delaware corporation
By: /s/ Steven H. Kane
-------------------------------------
Steven H. Kane
Its: President
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CERTIFICATE OF SECRETARY OF
PROTALEX, INC.
I, Steven H. Kane, Secretary of Protalex, Inc., a Delaware corporation,
hereby certify as Secretary and under the seal of said corporation that the Plan
of Merger and Agreement to which this certificate is attached, after having been
first duly executed on behalf of said corporation by its President, was adopted
at a meeting of the sole shareholder of Protalex, Inc. on March 23, 2004.
WITNESS MY HAND AND SEAL OF PROTALEX, INC. on the 26th day of October,
2004.
/s/ Frank M. Dougherty
-----------------------------
Frank M. Dougherty, Secretary
[SEAL]
The above Plan of Merger and Agreement, having been executed on behalf of
Protalex, Inc., a Delaware corporation, the only Delaware corporation which is a
party thereto, and having been adopted by the sole shareholder in accordance
with the provisions of the general laws of the State of Delaware, the President
of Protalex, Inc., now hereby executes said Plan of Merger and Agreement under
the corporate seal by the authority of the Board of Directors of Protalex, Inc.
this 26th day of October, 2004.
PROTALEX, INC.
By: /s/ Steven H. Kane
--------------------------------------
Steven H. Kane, President