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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
IDEC PHARMACEUTICALS CORPORATION
(A DELAWARE CORPORATION)
AND
IDEC PHARMACEUTICALS CORPORATION
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of May , 1997 (this
"Agreement"), is between IDEC Pharmaceuticals Corporation, a Delaware
corporation ("IDEC Delaware"), and IDEC Pharmaceuticals Corporation, a
California corporation ("IDEC California"). IDEC Delaware and IDEC California
are sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. IDEC California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital stock of Fifty
Eight Million (58,000,000) shares. The number of shares of Preferred Stock
authorized to be issued is Eight Million (8,000,000), no par value. One Million
Seven Hundred Fifty Thousand (1,750,000) shares of Preferred Stock have been
designated as Series A Preferred Stock, which series consists of seven subseries
designated as (i) Series A-1 Preferred Stock, consisting of One Hundred Thousand
(100,000) authorized shares (the "IDEC California Series A-1 Preferred Stock"),
all of which shares are issued and outstanding, (ii) Series A-2 Preferred Stock,
consisting of One Hundred Fifty Thousand (150,000) authorized shares (the "IDEC
California Series A-2 Preferred Stock"), of which 37,521 shares are issued and
outstanding, (iii) Series A-3 Preferred Stock, consisting of Seven Hundred
Thousand (700,000) authorized shares (the "IDEC California Series A-3 Preferred
Stock"), of which 22,993 shares are issued and outstanding, (iv) Series A-4
Preferred Stock, consisting of Two Hundred Fifty Thousand (250,000) authorized
shares (the "IDEC California Series A-4 Preferred Stock"), none of which shares
are issued and outstanding, (v) Series A-5 Preferred Stock, consisting of Three
Hundred Thousand (350,000) authorized shares (the "IDEC California Series A-5
Preferred Stock"), none of which shares are issued and outstanding, (vi) Series
A-6 Preferred Stock, consisting of One Hundred Thousand (100,000) authorized
shares (the "IDEC California Series A-6 Preferred Stock"), all of which shares
are issued and outstanding, and (vii) Series A-7 Preferred Stock, consisting of
One Hundred Thousand (100,000) authorized shares (the "IDEC California Series
A-7 Preferred Stock"), none of which shares are issued and outstanding. The
number of shares of common stock authorized to be issued is Fifty Million
(50,000,000), no par value (the "IDEC California Common Stock").
B. IDEC Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has a total authorized capital stock of Fifty
Eight Million (58,000,000) shares. The number of shares of Preferred Stock
authorized to be issued is Eight Million (8,000,000), par value $.001 per share.
One Million Seven Hundred Fifty Thousand (1,750,000) shares of Preferred Stock
have been designated as Series A Preferred Stock, which series consists of seven
subseries designated as (i) Series A-1 Preferred Stock, consisting of One
Hundred Thousand (100,000) authorized shares (the "IDEC Delaware Series A-1
Preferred Stock"), (ii) Series A-2 Preferred Stock, consisting of One Hundred
Fifty Thousand (150,000) authorized shares (the "IDEC Delaware Series A-2
Preferred Stock"), (iii) Series A-3 Preferred Stock, consisting of Seven Hundred
Thousand (700,000) authorized shares (the "IDEC Delaware Series A-3 Preferred
Stock"), (iv) Series A-4 Preferred Stock, consisting of Two Hundred Fifty
Thousand (250,000) authorized shares (the "IDEC Delaware Series A-4 Preferred
Stock"), (v) Series A-5 Preferred Stock, consisting of Three Hundred Thousand
(350,000) authorized shares (the "IDEC Delaware Series A-5 Preferred Stock"),
(vi) Series A-6 Preferred Stock, consisting of One Hundred Thousand (100,000)
authorized shares (the "IDEC Delaware Series A-6 Preferred Stock"), and (vii)
Series A-7 Preferred Stock,
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consisting of One Hundred Thousand (100,000) authorized shares (the "IDEC
Delaware Series A-7 Preferred Stock"). No shares of any series or subseries of
Preferred Stock of IDEC Delaware were outstanding as of the date hereof and
prior to giving effect to the transactions contemplated hereby. The number of
shares of common stock authorized to be issued is Fifty Million (50,000,000),
par value $.001 (the "IDEC Delaware Common Stock"). As of the date hereof, and
before giving effect to the transactions contemplated hereby, One Thousand
(1,000) shares of IDEC Delaware Common Stock were issued and outstanding, all of
which were held by IDEC California.
C. The Board of Directors of IDEC California has determined that, for the
purpose of effecting the reincorporation of IDEC California in the State of
Delaware, it is advisable and in the best interests of IDEC California that IDEC
California merge with and into IDEC Delaware upon the terms and conditions
herein provided.
D. The respective Boards of Directors of IDEC Delaware and IDEC California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective stockholders and executed by the undersigned
officers.
E. IDEC Delaware is a wholly-owned subsidiary of IDEC California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, IDEC Delaware and IDEC California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the General Corporation Law of the State of
California, IDEC California shall be merged with and into IDEC Delaware (the
"Merger"), the separate existence of IDEC California shall cease and IDEC
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be IDEC
Pharmaceuticals Corporation.
1.2 Filing and Effectiveness. The Merger shall not become effective until
the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and approved
by the shareholders of IDEC California and the sole stockholder of IDEC
Delaware in accordance with the requirements of the Delaware General
Corporation Law and the General Corporation Law of the State of California;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed 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
(d) An executed counterpart of this Agreement, a Certificate of
Ownership or any other document filed with the Secretary of State of the
State of Delaware pursuant to section (c) above, shall have been filed with
the Secretary of State of the State of California.
The date and time when the Merger shall become effective as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of IDEC California shall cease and IDEC Delaware, 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
IDEC California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of IDEC California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware,
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(iv) shall continue to be subject to all of the debts, liabilities and
obligations of IDEC Delaware 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 IDEC California in the same manner as if
IDEC Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the General Corporation Law of the State of Delaware
and the General Corporation Law of the State of California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of IDEC
Delaware 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 IDEC Delaware 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. (a) Pursuant to the Certificate of
Incorporation and the Bylaws of the Surviving Corporation, the directors of the
Surviving Corporation are classified into three classes, as nearly equal in
number as possible as determined by the board of directors, with (i) the term of
office of the first class to expire at the 1998 Annual Meeting of Stockholders,
(ii) the term of office of the second class to expire at the 1999 Annual Meeting
of Stockholders and (iii) the term of office of the third class to expire at the
2000 Annual Meeting of Stockholders. On and after the Effective Time, the Board
of Directors of the Surviving Corporation shall consist of eight (8) members
divided into three classes, as follows:
Initial Class I Directors
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Initial Class II Directors
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
Initial Class III Directors
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Ph.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Such individuals shall serve as directors of the Surviving Corporation on
and after the Effective Date until their successors shall have been duly elected
and qualified or until as otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
(b) The officers of IDEC Delaware immediately prior to the Effective Date
of the Merger shall become the officers of the Surviving Corporation on and
after the Effective Date until their successors shall have been duly elected and
qualified or until as otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 IDEC California Common Stock. Upon the Effective Date of the Merger,
each share of IDEC California Common Stock issued and outstanding immediately
prior thereto shall by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
IDEC Delaware Common Stock.
3.2 IDEC California Series A Preferred Stock. (a) Upon the Effective Date
of the Merger, each share of IDEC California Series A-1 Preferred Stock issued
and outstanding immediately prior thereto shall by
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virtue of the Merger and without any action by the Constituent Corporations, the
holder of such share or any other person, be converted into and exchanged for
one (1) fully paid and nonassessable share of IDEC Delaware Series A-1 Preferred
Stock.
(b) Upon the Effective Date of the Merger, each share of IDEC California
Series A-2 Preferred Stock issued and outstanding immediately prior thereto
shall by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such share or any other person, be converted into
and exchanged for one (1) fully paid and nonassessable share of IDEC Delaware
Series A-2 Preferred Stock.
(c) Upon the Effective Date of the Merger, each share of IDEC California
Series A-3 Preferred Stock issued and outstanding immediately prior thereto
shall by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such share or any other person, be converted into
and exchanged for one (1) fully paid and nonassessable share of IDEC Delaware
Series A-3 Preferred Stock.
(d) Upon the Effective Date of the Merger, each share of IDEC California
Series A-6 Preferred Stock issued and outstanding immediately prior thereto
shall by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such share or any other person, be converted into
and exchanged for one (1) fully paid and nonassessable share of IDEC Delaware
Series A-6 Preferred Stock.
3.3 IDEC Delaware Common Stock. Upon the Effective Date of the Merger,
each share of IDEC Delaware Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by IDEC
Delaware, the holder of such shares or any other person, be cancelled and
returned to the status of authorized but unissued shares.
3.4 IDEC California Options, Warrants and Stock Purchase Rights. (a) Upon
the Effective Date of the Merger, the Surviving Corporation shall assume and
continue all of IDEC California's stock option and purchase plans in existence
at the Effective Date, including but not limited to the 1988 Stock Option Plan,
the 1995 Employee Stock Purchase Plan and the 1993 Non-Employee Directors Stock
Option Plan.
(b) Each outstanding and unexercised option, warrant or other right to
purchase shares of IDEC California Common Stock shall become an option, warrant
or right to purchase the Surviving Corporation's Common Stock on the basis of
one (1) share of IDEC Delaware Common Stock for each share of IDEC California
Common Stock issuable pursuant to any such option, warrant or stock purchase
right on the same terms and conditions and at an exercise price per share equal
to the exercise price per share applicable to any such IDEC California option,
warrant or stock purchase right at the Effective Date of the Merger. A number of
shares of IDEC Delaware Common Stock shall be reserved for issuance upon the
exercise of options, warrants and stock purchase rights equal to the number of
shares of IDEC California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.5 Employee Benefit Plans. On the Effective Date, the Surviving
Corporation shall assume all obligations of IDEC California under any and all
employee benefit plans in effect as of the Effective Date with respect to which
employee rights or accrued benefits are outstanding as of such time, including,
but not limited to, the 1988 Stock Option Plan, the 1995 Employee Stock Purchase
Plan, the 1993 Non-Employee Directors Stock Option Plan and the 401(k) Employee
Savings Plan. On the Effective Date, the Surviving Corporation shall adopt and
continue in effect all such employee benefit plans upon the same terms and
conditions as were in effect immediately prior to the Merger.
3.6 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of IDEC California
Common Stock may be asked to 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 IDEC Delaware Common Stock into which the surrendered shares
were converted as herein provided. Until so surrendered, each outstanding
certificate theretofore representing shares of IDEC California Common Stock
shall be deemed for all purposes to represent the number of shares of IDEC
Delaware Common Stock into which such shares of IDEC California Common Stock
were converted in the Merger.
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The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any 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 IDEC Delaware Common Stock
represented by such outstanding certificate as provided above.
Each certificate representing IDEC Delaware Common Stock so issued in the
Merger shall bear the same legends, if any, with respect to the restrictions on
transferability as the certificates representing shares of IDEC California
Common Stock so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of IDEC Delaware 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 comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of 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 IDEC Delaware that
such tax has been paid or is not payable.
No action need be taken by holders of IDEC California Common Stock to
exchange their certificates for shares of IDEC Delaware Common Stock; this will
be accomplished at the time of the next transfer by the shareholder.
Certificates for shares of IDEC California Common Stock will automatically
represent an equal number of shares of IDEC Delaware Common Stock upon the
Effective Date of the Merger.
IV. GENERAL
4.1 Covenants of IDEC Delaware. IDEC Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the State of
California.
4.1.2 File any and all documents with the California Franchise Tax
Board necessary for the assumption by IDEC Delaware of all of the franchise
tax liabilities of IDEC California.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 Further Assurances. From time to time, as and when required by
IDEC Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of IDEC California such deeds and other instruments,
and there shall be taken or caused to be taken by it 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 IDEC Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of IDEC California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of IDEC Delaware are fully authorized in the name and on behalf
of IDEC California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
4.3 Abandonment. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either IDEC California or of
IDEC Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of IDEC California.
4.4 Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of
this Agreement (or certificate in lieu thereof) with the Secretary of State
of the State of Delaware, provided that an amendment made subsequent to the
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adoption of this Agreement by the stockholder or shareholders 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 Surviving Corporation to be
effected by the Merger or (3) alter or change any of the terms and
conditions of this Agreement if such alteration or change would adversely
affect the holders of any class or series of capital stock of any
Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle and the registered agent of the Surviving
Corporation at such address is The Corporation Trust Company.
4.6 Agreement. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and copies thereof will be furnished
to any stockholder or shareholder of either Constituent Corporation, upon
request and without cost.
4.7 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
General Corporation Law of the State of California.
4.8 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 having first been approved by the
resolutions of the Boards of Directors of IDEC Pharmaceuticals Corporation, a
Delaware corporation, and IDEC Pharmaceuticals Corporation, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
IDEC PHARMACEUTICALS CORPORATION,
a Delaware corporation
By:
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ATTEST:
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IDEC PHARMACEUTICALS CORPORATION,
a California corporation
By:
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ATTEST:
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