AGREEMENT AND PLAN OF MERGER

 

                                                                    Exhibit 2.1

 

                          AGREEMENT AND PLAN OF MERGER

 

         This Agreement and Plan of Merger (the "Agreement") is made as of the

20th day of January, 2005 by and among Corporate Road Show.Com Inc., a New York

corporation (the "Company"), CRS Merger Sub, Inc., a Delaware corporation

("Merger Sub"), CRS Delaware, Inc., a Delaware corporation ("CRS Delaware"), and

Rexahn, Corp, a Maryland corporation ("Rexahn").

 

         WHEREAS, Rexahn is authorized to issue 20,000,000 shares of its common

stock, par value $.01 per share ("Rexahn Common Stock"), of which 7,628,166

shares ("Issued Rexahn Shares") are issued and outstanding as of the date hereof

and 10,000,000 shares of its preferred stock, par value $.01 per share ("Rexahn

Preferred Stock"), of which no shares are issued and outstanding as of the date

hereof; and

 

         WHEREAS, the Company is authorized to issue 500,000,000 shares of

common stock, par value $.0001 per share (the "Company Common Stock"), of which

289,780,000 shares are issued and outstanding as of the date hereof; and

 

         WHEREAS, Merger Sub is a wholly owned subsidiary of the Company and is

authorized to issue 1,000 shares of common stock, par value $.01 per share (the

"Merger Sub Shares"), all of which are issued and outstanding and owned by the

Company as of the date hereof; and

 

         WHEREAS, CRS Delaware is a wholly owned subsidiary of the Company and

is authorized to issue 1,000 shares of common stock, par value $.01 per share,

all of which are issued and outstanding and owned by the Company as of the date

hereof; and

 

         WHEREAS, immediately prior to the consummation of the Reincorporation

(as defined below), the certificate of incorporation of CRS Delaware will be

amended and restated to provide that CRS Delaware is authorized to issue

500,000,000 shares of common stock, par value $.0001 per share (the "Rexahn

Pharmaceuticals Common Stock"), and 100,000,000 shares of preferred stock, par

value $.0001 per share; and

 

         WHEREAS, immediately prior to the Merger, the Company will

reincorporate and change its state of incorporation from the State of New York

to the State of Delaware by means of a merger of the Company with and into CRS

Delaware (the "Reincorporation"), whereby each Company Common Stock will be

converted into the right to receive one share (after giving effect to the

Reverse Stock Split (as defined below)) or in lieu of the Reverse Stock Split,

one-one hundredth (1/100) of a share, of Rexahn Pharmaceuticals Common Stock,

with CRS Delaware surviving as a Delaware corporation under the name "Rexahn

Pharmaceuticals, Inc." ("Rexahn Pharmaceuticals"); and

 

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         WHEREAS, the respective Boards of Directors of the Company, Merger Sub,

CRS Delaware and Rexahn (the "Constituent Corporations") deem it advisable and

in the best interests of the Constituent Corporations, and their respective

stockholders, that Merger Sub be merged with and into Rexahn under the terms and

conditions hereinafter set forth (the "Merger") and the Merger be effected

pursuant to the Maryland General Corporation Law (the "MGCL") and the Delaware

General Corporation Law (the "DGCL"); and

 

         WHEREAS, it is intended that the Merger and the Reincorporation each be

treated as a tax free reorganization under Section 368(a) of the Internal

Revenue Code of 1986, as amended (the "Code"); and

 

         NOW, THEREFORE, in consideration of the premises, covenants and

conditions hereof, the parties hereto do mutually agree as follows:

 

                                   ARTICLE I

 

                                   The Merger

 

              SECTION 1.1   The Merger. On the basis of the representations,

warranties, covenants and agreements set forth in this Agreement and subject to

the satisfaction or waiver of the conditions set forth in this Agreement, at the

Effective Time (as defined below) and in accordance with the applicable

provisions of the MGCL and the DGCL:

 

              (a) Merger Sub shall be merged with and into Rexahn and the

separate corporate existence of Merger Sub shall thereupon cease. Rexahn, as the

surviving corporation in the Merger and a wholly-owned subsidiary of the

Company, shall continue its existence under the name "Rexahn, Corp" and shall

continue to be governed by the MGCL. The Merger shall have the effects set forth

in Section 3-114 of the MGCL and Section 259 of the DGCL.

 

              (b) The Articles of Incorporation and By-laws of Rexahn, as in

effect immediately prior to the Effective Time, shall thereafter be the articles

of incorporation and by-laws of the surviving corporation in the Merger until

duly amended or repealed.

 

              (c) The members of the Board of Directors of Rexahn immediately

prior to the Effective Time shall thereafter be the members of the Board of

Directors of the surviving corporation in the Merger until the earlier of their

resignation or removal or until their respective successors are duly elected or

appointed and qualified in the manner

 

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provided in the articles of incorporation and by-laws of the surviving

corporation in the Merger, or as otherwise provided by law.

 

              (d) The officers of Rexahn immediately prior to the Effective Time

shall be the initial officers of the surviving corporation in the Merger until

the earlier of their resignation or removal or until their respective successors

are duly elected or appointed and qualified.

 

              SECTION 1.2   Closing. The closing of the transactions contemplated

by this Agreement (the "Closing") will take place at the offices of Chadbourne &

Parke LLP, 30 Rockefeller Plaza, New York, New York, commencing at 10:00 a.m.

Eastern time on the next business day after all the conditions set forth in this

Agreement have been satisfied or waived, or such later date as agreed upon by

the parties hereto (the "Closing Date").

 

              SECTION 1.3   Filing of Articles of Merger. Subject to the

provisions of this Agreement, as soon as practicable on the Closing Date, Merger

Sub and Rexahn shall cause Articles of Merger substantially in the form of

Exhibit A attached hereto (the "Articles of Merger") and the Certificate of

Merger substantially in the form of Exhibit B attached hereto (the "Certificate

of Merger") or other appropriate documents, duly executed in accordance with the

relevant provisions of the MGCL and the DGCL, to be filed and recorded as

required by the MGCL and the DGCL and will take any other further actions in

connection therewith as may be required by the MGCL and the DGCL to make the

Merger effective. The Merger shall become effective at the later of the time the

Articles of Merger are duly filed with the State Department of Assessments and

Taxation of the State of Maryland and the Certificate of Merger is filed with

the Secretary of State of the State of Delaware or at the effective time set

forth in the Articles of Merger and the Certificate of Merger (the "Effective

Time").

 

              SECTION 1.4   Certain Effects of the Merger.

 

              (a) At the Effective Time, Merger Sub shall be merged with and

into Rexahn and the separate existence of Merger Sub shall cease. Rexahn, as the

surviving corporation in the Merger, shall thereupon and thereafter possess all

the rights, privileges, powers and franchises, of a public or of a private

nature, and be subject to all restrictions, liabilities and duties of each of

Rexahn and Merger Sub and shall continue its existence as a Maryland

corporation.

 

              (b) The parties to this Agreement intend that the Merger and the

Reincorporation shall each constitute a tax free "reorganization" within the

meaning of Section 368(a) of the Code and that this Agreement shall constitute a

"plan of reorganization" for the purposes of Section 368 of the Code. Each party

to this

 

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Agreement hereby agrees to file all tax returns, reports, or other documents,

and to act in all other respects, in a manner consistent therewith.

 

               SECTION 1.5   Effect of Merger on Capital Stock.

 

              (a) Cancellation of Rexahn Treasury Stock. At the Effective Time,

by virtue of the Merger and without any action on the part of the holders of

capital stock of Rexahn or of Merger Sub, each share of Rexahn Common Stock

issued and held in the treasury of Rexahn immediately prior to the Effective

Time shall cease to be outstanding, shall be canceled and retired without any

conversion thereof and without payment of any consideration therefor and shall

cease to exist.

 

              (b) Conversion of Rexahn Common Stock.

 

                   (i) At the Effective Time, by virtue of the Merger and

         without any action on the part of the holders of capital stock of

         Rexahn or of Merger Sub, each share of Rexahn Common Stock issued and

         outstanding immediately prior to the Effective Time (other than

         Dissenting Shares (as defined below) and shares of Rexahn Common Stock

         being canceled pursuant to Section 1.5(a)), shall be converted into the

         right to receive, upon surrender of the certificate which immediately

         prior to the Effective Time represented such share in accordance with

         Section 1.7, five (the "Merger Ratio") shares of Rexahn Pharmaceuticals

         Common Stock.

 

                   (ii) Each share of Rexahn Common Stock so converted at the

         Effective Time shall be canceled and retired and shall cease to exist,

         and each certificate which theretofore represented shares so converted

         and canceled shall thereafter cease to have any rights with respect to

         such shares except the right to receive the Rexahn Pharmaceuticals

         Common Stock.

 

              (c) Dissenting Shares. Notwithstanding anything in this Agreement

to the contrary, any shares of Rexahn Common Stock issued and outstanding

immediately prior to the Effective Time and held by a holder (a "Dissenting

Stockholder") who has not voted in favor of the Merger or consented thereto in

writing and who has properly demanded appraisal for such shares of Common Stock

in accordance with the MGCL ("Dissenting Shares") shall not be converted into a

right to receive the Rexahn Pharmaceuticals Common Stock in accordance with this

Section 1.5 at the Effective Time, but shall represent and become the right to

receive such consideration as may be determined to be due to such Dissenting

Stockholder pursuant to the laws of the State of Maryland, unless and until such

holder fails to perfect or withdraws or otherwise loses such holder's right to

appraisal and payment under the MGCL. At the Effective Time, by virtue of the

Merger and without any action on the part of the holder thereof, all

 

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Dissenting Shares shall be cancelled and shall cease to exist. If, after the

Effective Time, such Dissenting Stockholder fails to perfect or withdraws or

otherwise loses such holder's right to appraisal, such former Dissenting Shares

held by such holder shall be treated as if they had been converted as of the

Effective Time into a right to receive, upon surrender as provided above, Rexahn

Pharmaceuticals Common Stock in accordance with this Section 1.5 without any

interest thereon. Rexahn Pharmaceuticals shall be responsible for delivering the

shares of Rexahn Pharmaceuticals Common Stock in accordance with this Section

1.5 to such holder. Rexahn shall give Rexahn Pharmaceuticals prompt notice of

any demands received by the Company for appraisal of shares of Rexahn Common

Stock, any withdrawals of any such demands and any other instruments served

pursuant to the MGCL and received by Rexahn.

 

              (d) Merger Sub Shares. At the Effective Time, by virtue of the

Merger and without any action on the part of the holder thereof, each Merger Sub

Share issued and outstanding immediately prior to the Effective Time shall be

converted into and become an issued and outstanding share of common stock of the

surviving corporation in the Merger.

 

              (e) Securities Act Exemption. The Rexahn Pharmaceuticals Common

Stock to be issued in the Merger is intended to be exempt from the registration

requirements of the Securities Act of 1933, as amended (the "Securities Act"),

pursuant to Section 4(2) of the Securities Act and/or Regulation S thereunder

and from applicable state securities laws. The Company will use reasonable

efforts to facilitate each Rexahn stockholder taking all reasonable actions and

executing all necessary documents to qualify the issuance of Rexahn

Pharmaceuticals Common Stock for such exemptions.

 

              SECTION 1.6   Rexahn Options.

 

              (a) At the Effective Time, each option to purchase Rexahn Common

Stock (a "Rexahn Option") that is outstanding and unexercised immediately prior

to the Effective Time shall cease to represent a right to acquire shares of

Rexahn Common Stock and shall be converted into an option to purchase shares of

Rexahn Pharmaceuticals Common Stock (a "Rexahn Pharmaceuticals Option") for a

number of shares of Rexahn Pharmaceuticals Common Stock and at an exercise price

determined as provided below (and otherwise subject to the terms of the Rexahn,

Corp Stock Option Plan pursuant to which such Rexahn Option has been issued and

the agreements evidencing grants thereunder):

 

                    (i) The number of shares of Rexahn Pharmaceuticals Common

         Stock subject to the Rexahn Pharmaceuticals Option shall be equal to

         the product of the number of shares of Rexahn Common Stock subject to

         the Rexahn Option immediately prior to the Effective Time, multiplied

         by the Merger Ratio, and, if

 

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         any resultant fractional share of Rexahn Pharmaceuticals Common Stock

         exists, rounded down to the nearest whole share, without any payment

         for such fractional share; and

 

                   (ii) The exercise price per share of Rexahn Pharmaceuticals

         Common Stock of the Rexahn Pharmaceuticals Option shall be equal to the

         quotient of the exercise price per share of Rexahn Common Stock under

         the Rexahn Option immediately prior to the Effective Time, divided by

         the Merger Ratio, rounded up to the nearest hundredth of a cent;

         provided, however, that in no event will the exercise price per share

         of any Rexahn Pharmaceuticals Option be less than $.0001.

 

              (b) The duration and other terms and conditions of the Rexahn

Pharmaceuticals Option, including vesting and exercisability, shall be the same

as the original Rexahn Option except that all references to Rexahn and Rexahn

Common Stock shall be deemed to be references to the Company and Rexahn

Pharmaceuticals Common Stock, respectively.

 

              SECTION 1.7   Delivery of New Certificates. Promptly after the

Effective Time, Rexahn Pharmaceuticals shall mail to each record holder of

certificates formerly representing all of such holder's shares of Rexahn Common

Stock (the "Old Certificates"), at the address set forth on books of Rexahn, (i)

a notice of the effectiveness of the Merger and (ii) a Letter of Transmittal.

Upon surrender to Rexahn Pharmaceuticals of an Old Certificate, together with a

Letter of Transmittal duly executed and completed in accordance with the

instructions thereto, the holder of such Old Certificate (other than Old

Certificates representing Dissenting Shares or shares of Rexahn Common Stock to

be canceled pursuant to Section 1.5(a)) shall be entitled to receive in exchange

therefor, certificates representing the shares of Rexahn Pharmaceuticals Common

Stock into which such holder's shares of Rexahn Common Stock were converted

pursuant to the Merger (the "New Certificates") that such holder is entitled to

receive pursuant to Section 1.5(b)(i), which shall be delivered by Rexahn

Pharmaceuticals in accordance with the instructions provided by such holder in

the Letter of Transmittal executed by such holder.

 

              SECTION 1.8   Share Certificates Issued in Different Names. If the

New Certificates to be delivered hereby are to be delivered in the name of a

Person other than the Person in whose name the Old Certificate surrendered is

registered, it shall be a condition of such delivery that the Old Certificate so

surrendered shall be properly endorsed or otherwise in proper form for transfer

and that the Person requesting such delivery shall pay any transfer or other

taxes required by reason of such delivery to a Person other than the registered

holder of the Old Certificate, or that such Person shall establish to the

satisfaction of the Company that such tax has been paid or

 

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is not applicable. Except as provided in the preceding sentence, any duty, stamp

or transfer tax required to effect the exchange of certificates as contemplated

by Section 1.7 shall be borne by Rexahn Pharmaceuticals.

 

              SECTION 1.9   No Further Ownership Rights in Rexahn Common Stock.

All consideration paid upon the conversion of Rexahn Common Stock and the

surrender of Old Certificates in accordance with the terms of this Agreement

shall be deemed to have been paid in full satisfaction of all rights pertaining

to the shares of Rexahn Common Stock theretofore represented by such Old

Certificates. At the Effective Time, the stock transfer books of Rexahn shall be

closed, and there shall be no further registration of transfers on the stock

transfer books of the surviving corporation in the Merger of the shares of

Rexahn Common Stock that were outstanding immediately prior to the Effective

Time. If, after the Effective Time, Old Certificates are presented to Rexahn

Pharmaceuticals for any reason, they shall be canceled and exchanged as provided

in this Agreement.

 

              SECTION 1.10   No Liability. Notwithstanding anything to the

contrary contained herein, none of the Company, Merger Sub, CRS Delaware, Rexahn

or Rexahn Pharmaceuticals shall be liable to any holder of an Old Certificate or

any other person or entity in respect of any cash delivered to a public official

pursuant to any applicable abandoned property, escheat or similar law.

 

                                   ARTICLE II

                    Representations and Warranties of Rexahn

 

              Rexahn represents and warrants to the Company as follows, except

to the extent set forth on the corresponding sections of the schedule of

exceptions attached hereto and made a part hereof (the "Rexahn Schedule of

Exceptions"):

 

              SECTION 2.1   Organization; Standing and Power. Rexahn is a

corporation duly incorporated, validly existing and in good standing under the

laws of the State of Maryland and has all requisite corporate power and

authority required to own, lease and operate its properties and to carry on its

business as currently being conducted. Copies of the Articles of Incorporation

and By-laws, corporate minute books, stock certificate books and stock transfer

books of Rexahn have heretofore been delivered to the Company and are true,

correct and complete. Rexahn is not required to be qualified or licensed as a

foreign corporation in any other jurisdiction to conduct its business as

currently conducted.

 

              SECTION 2.2   Authorization.

 

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              (a) Rexahn has all requisite corporate power and authority to

execute and deliver this Agreement and, subject to the approval by the

stockholders of Rexahn whose consent is required in accordance with the laws of

the State of Maryland, to consummate the transactions contemplated by this

Agreement.

 

              (b) Except for the consent and approval of the stockholders of

Rexahn and the filing of the Articles of Merger and the Certificate of Merger,

the execution, delivery and performance of the Agreement by Rexahn and the

consummation by Rexahn of the transactions contemplated by the Agreement will

not require on the part of Rexahn any permit, approval, order or authorization

of, or filing or registration with, or allowance by, or consent of or

notification to any federal, state or local government or any court,

administrative or regulatory agency or commission or other governmental agency

or authority, domestic or foreign (a "Governmental Authority") or any

individual, partnership, joint venture, corporation, limited liability company,

trust, unincorporated organization or other entity (including a Governmental

Authority) (a "Person").

 

              SECTION 2.3   Binding Agreement. This Agreement has been duly

executed and delivered by Rexahn, and assuming the due execution and delivery of

this Agreement by the Company, Merger Sub and CRS Delaware, constitutes the

valid and binding obligation of Rexahn, enforceable against it in accordance

with its terms, except to the extent that its enforceability may be limited by

bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium,

receivership and other similar laws affecting the enforcement of creditors'

rights in general and general principles of equity (regardless of whether such

enforceability is considered in a proceeding in equity or at law).

 

               SECTION 2.4   No Conflicts. The execution, delivery and performance

of the Agreement by Rexahn and the consummation by Rexahn of the transactions

contemplated by the Agreement will not, with or without the giving of notice or

lapse of time, or both, violate, conflict with, result in a breach of,

constitute a default under or accelerate the performance required by any of the

terms, conditions or provisions of (i) the Articles of Incorporation or By-laws

of Rexahn or (ii) except for such violations, conflicts, breaches, defaults or

accelerations that, individually or in the aggregate, have a material adverse

effect on the business of Rexahn, any contract, covenant, agreement or

understanding, or any statute, rule, regulation, order, decree, ruling,

judgment, arbitration award, law, ordinance or stipulation to which Rexahn is a

party or to which it or any of its properties or assets is subject, or result in

the creation of any liens, pledges, security interests, charges, equities,

options, proxies, voting restrictions, rights of first refusal, encumbrances,

restrictions (other than restrictions arising under applicable securities laws)

and claims of every kind and character ("Encumbrances") on any of its properties

or assets.

 

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              SECTION 2.5   Broker's or Finder's Fees. No agent, broker, firm or

other Person acting on behalf of Rexahn is, or will be, entitled to any

investment banking, commission, broker's or finder's fees from any of the

parties hereto, or from any Person controlling, controlled by or under common

control with any of the parties hereto, in connection with any of the

transactions contemplated by this Agreement, except for NeXend.

 

              SECTION 2.6   Capitalization. The outstanding capitalization of

Rexahn is set forth on Schedule A annexed hereto. There are issued and

outstanding only the Issued Rexahn Shares, all of which are duly authorized and

validly issued. No securities of Rexahn are entitled to preemptive or similar

rights and no Person has any right of first refusal, right of participation, or

any similar right to participate in the transactions contemplated hereby. Except

as set forth on Schedule A, there are no outstanding options, warrants or other

rights to acquire capital stock of Rexahn, and there are no options, warrants,

calls, rights, commitments agreements, understandings or arrangements to which

Rexahn is a party or by which Rexahn is or may become bound to issue additional

shares of capital stock of Rexahn, or securities or rights convertible or

exchangeable into shares of capital stock of Rexahn prior to the Effective Time.

 

              SECTION 2.7   Subsidiaries. Rexahn does not have any subsidiaries,

nor does it own any direct or indirect interest in any other business entity.

 

              SECTION 2.8   Financial Statements. Rexahn has furnished the

Company with a true and complete copy of (i) the audited balance sheets of

Rexahn as of December 31, 2002 and 2003, and the related audited statements of

income and statements of cash flow of Rexahn for the fiscal years ended December

31, 2002 and 2003 (the "Audited Financial Statements") and (ii) the unaudited

balance sheets of Rexahn as of September 30, 2003 and 2004 and the related

unaudited statements of income and statements of cash flow for Rexahn for the

nine months ended September 30, 2003 and 2004 (the "Unaudited Financial

Statements" and, together with the Audited Financial Statements, the "Financial

Statements"). The Financial Statements fairly present in all material respects

the financial position, results of operations and other information purported to

be shown thereon of Rexahn, at the dates and for the respective periods to which

they apply, subject, in the case of the Unaudited Financial Statements, to

normal, immaterial year-end audit adjustments. All such Audited Financial

Statements have been audited by SF Partnership LLP and are accompanied by their

audit report and were prepared in conformity with United States generally

accepted accounting principles ("GAAP") consistently applied throughout the

periods involved, and have been adjusted for all normal and recurring accruals.

 

              SECTION 2.9   No Adverse Changes. There has not been any material

adverse change in the financial condition of Rexahn from that set forth in the

Financial

 

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Statements except for (i) transactions in the ordinary course of

business since September 30, 2004 and (ii) transactions, including but not

limited to the incurring of expenses and liabilities, relating to this

Agreement.

 

              SECTION 2.10   Liabilities; Claims. There are no liabilities

(including, but not limited to, tax liabilities) or claims against Rexahn

(whether such liabilities or claims are contingent or absolute, direct or

indirect, and matured or unmatured) not appearing in the Financial Statements,

other than (i) liabilities incurred in the ordinary course of business since

September 30, 2004, (ii) taxes accrued on earnings since September 30, 2004

which are not yet due or payable or (iii) other liabilities which do not exceed

$100,000 in the aggregate.

 

              SECTION 2.11   Material Contracts. All written agreements,

contracts, letters of intent, arrangements, understandings and commitments to

which Rexahn is a party and which are material to Rexahn (collectively, "Rexahn

Contracts") are in good standing, valid and effective in accordance with their

respective terms, and neither Rexahn nor any other party to a Rexahn Contract

has violated any provision of, or committed or failed to perform any act which,

with or without notice, lapse of time or both, would constitute a default under

the provisions of, any such Rexahn Contract. Rexahn is not a party to or bound

by any contract which would prohibit or materially delay the consummation of

transactions contemplated by this Agreement.

 

              SECTION 2.12   Tax Matters.

 

              (a) All federal, state, county, local and foreign income, excise,

property and other tax returns required to be filed by Rexahn have been timely

filed and all such duly filed tax returns are true and correct in all material

respects. All required taxes, fees or assessments have been paid or an adequate

reserve therefor has been established (in accordance with GAAP) in the Financial

Statements. The federal income tax returns and state and foreign income tax

returns of Rexahn have not been audited by the Internal Revenue Service (the

"IRS") or any other taxing authority and Rexahn has not received any notice of

deficiency or assessment from any taxing authority with respect to liability for

taxes which has not been fully paid or finally settled. Neither the IRS nor any

state, local, foreign or other taxing authority has proposed in writing any

additional taxes, interest or penalties with respect to Rexahn or any of its

operations or businesses. There are no pending, or to the knowledge of Rexahn,

threatened, tax claims or assessments, and there are no pending, or to the

knowledge of Rexahn, threatened, tax examinations by any taxing authorities.

Rexahn has not given any waivers of rights (which are currently in effect) under

applicable statutes of limitations with respect to taxes of Rexahn for any

taxable period. There are no liens for taxes upon the assets of Rexahn except

for statutory liens for current taxes not yet due and payable or which may

thereafter be paid without penalty or are being contested in good faith. Rexahn

has not

 

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filed a request with the IRS for changes in accounting methods within the last

three (3) years which change would affect the accounting for tax purposes,

directly or indirectly, of its business.

 

              (b) Rexahn has not taken any action nor does it have any knowledge

of any fact, agreement, plan or other circumstance, that is reasonably likely to

prevent the Merger from qualifying as a tax free reorganization within the

meaning of Section 368(a) of the Code.

 

              (c) Rexahn does not have any liability for taxes of any person as

a result of being a member of an affiliated, consolidated, combined or unitary

group under Treasury Regulation Section 1.1502-6 (or any comparable provision of

state, local or foreign law), nor is it bound by any obligation under any tax

sharing agreement, tax indemnification agreement or similar contract or

arrangement.

 

              SECTION 2.13   Legal Proceedings. There are no legal,

administrative, arbitral or other proceedings, claims, suits, actions or

governmental investigations of any nature pending, or to Rexahn's knowledge,

threatened, directly or indirectly involving Rexahn or its officers, directors,

employees or affiliates, which would reasonably be expected to have a material

adverse effect on the business of Rexahn or challenging the validity of the

transactions contemplated by this Agreement. Rexahn is not a party to any order,

judgment, injunction, rule or decree of any Governmental Authority or arbitrator

which would reasonably be expected to have a material adverse effect on the

business of Rexahn.

 

              SECTION 2.14   Insurance. Rexahn has maintained casualty and

liability policies and other insurance policies with respect to its business

which are appropriate and customary for businesses similar in size, industry and

risk profile. All of the policies of insurance and bonds presently in force with

respect to Rexahn, including without limitation those covering properties,

buildings, machinery, equipment, worker's compensation, product liability,

officers and directors and public liability, are outstanding and in full force

and effect, with all premiums thereon duly paid, and Rexahn has not received any

notice of cancellation of any such policies.

 

              SECTION 2.15   Intellectual Property.

 

              (a) Rexahn owns, or has validly licensed or otherwise has the

right to use or exploit, as currently used or exploited, and as contemplated to

be used and exploited in the future, all material proprietary technology,

patents, trademarks, trade names, service marks and registered copyrights (and

all pending applications or current registrations for any of the foregoing), and

all licenses granted to Rexahn by third parties of patent rights, trademark

rights, trade name rights and service mark rights, used by

 

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Rexahn in the conduct of its business (together with trade secrets and know how

used in the conduct of its business, the "Rexahn Intellectual Property Rights"),

free of any lien or any obligation to make any payment (whether of a royalty,

license fee, compensation or otherwise). No claims are pending or, to the

knowledge of Rexahn, threatened against Rexahn that Rexahn is infringing or

otherwise violating the rights of any Person with regard to any Rexahn

Intellectual Property Right or that any Rexahn Intellectual Property Right is

invalid or unenforceable. To the knowledge of Rexahn, no Person is infringing

the rights of Rexahn with respect to any Rexahn Intellectual Property Right nor

has any Person threatened to do so. Neither Rexahn, nor, to the knowledge of

Rexahn, any of its employees, agents or independent contractors, in connection

with the performance of such Person's services with Rexahn, as the case may be,

has used, appropriated or disclosed, directly or indirectly, any trade secret or

other proprietary or confidential information of any other Person without the

right to do so, or otherwise violated any confidential relationship with any

other Person, other than such actions that have not had, or would not reasonably

be expected to have, a material adverse effect on the business of Rexahn.

 

              (b) Except as set forth on Schedule 2.15:

 

                   (i) All former and current consultants or contractors of

         Rexahn have executed and delivered written instruments with Rexahn,

         that assign to Rexahn all rights to any inventions, improvements,

         discoveries or information developed by them for or on behalf of

         Rexahn. All employees of Rexahn who participated in the creation or

         contributed to the development of the Rexahn Intellectual Property

         Rights were employees of Rexahn at the time of rendering such services,

         such services were within the scope of their employment and such

         employees have validly assigned all rights to the Rexahn Intellectual

         Property Rights to Rexahn; and

 

                   (ii) Rexahn has taken all such security measures as it has

         determined are commercially reasonable and appropriate, including

          entering into appropriate confidentiality and nondisclosure agreements

         with all of their employees, consultants and contractors, and any other

         persons with access to the Rexahn Intellectual Property Rights, trade

         secrets or know how of Rexahn, to protect the secrecy, confidentiality

         and value of all such Rexahn Intellectual Property Rights, trade

         secrets or know how and there has not been any breach by Rexahn, nor,

         to the knowledge of Rexahn, any other party to any such related

         agreements, other than such that would not reasonably be expected to

         have a material adverse effect on the business of Rexahn.

 

              SECTION 2.16   Permits; Compliance with Laws. Rexahn has all

governmental licenses, authorizations, permits, consents and approvals

("Permits")

 

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required to own, lease and operate its properties and to carry on its business

as currently conducted. Rexahn: (i) is not in default under or in violation of

(and no event has occurred that has not been waived that, with notice or lapse

of time or both, would result in a default by Rexahn under), nor has Rexahn

received notice of a claim that it is in default under or that it is in

violation of, any indenture, mortgage, deed of trust or other agreement,

instrument or contract to which Rexahn is a party or by which it or any of its

assets or properties are bound (whether or not such default or violation has

been waived), (ii) is not in violation of any order of any court, arbitrator or

Governmental Authority, (iii) is not and has not been in violation of any law,

order, rule, regulation, writ, injunction, judgment or decree of any

Governmental Authority having jurisdiction over Rexahn or any of its business or

properties, including federal and state securities laws and regulations and (iv)

is not in violation of any of its Permits, except where the failure to so comply

did not have and would not reasonably be expected to have a material adverse

effect on the business of Rexahn.

 

              SECTION 2.17   Related Party Contracts. Except as set forth on

Schedule 2.17, none of the officers, directors, or affiliates of Rexahn is

presently a party to any transaction with Rexahn (other than for services as

employees, officers and directors), including any loans, leases, agreements,

arrangements or understandings outstanding between Rexahn and any of its

officers, directors, or affiliates or any person related to or affiliated with

any such officers or directors.

 

              SECTION 2.18   Benefit Plans. Except as set forth on Schedule 2.18,

Rexahn does not have any pension, retirement, savings, profit sharing,

stock-based, incentive compensation or other similar employee benefit plan.

 

               SECTION 2.19   Employee Matters. No employees of Rexahn are on

strike or, to the best of Rexahn's knowledge, threatening any strike or work

stoppage. Rexahn does not have any obligations under any collective bargaining

or labor union agreements, nor is Rexahn involved in any material controversy

with any of its employees or any organization representing any of its employees.

 

              SECTION 2.20   Trading With the Enemy Act; Patriot Act. No sale of

Rexahn's securities nor Rexahn's use of the proceeds from such sale has violated

the Trading with the Enemy Act, as amended, or any of the foreign assets control

regulations of the United States Treasury Department (31 CFR, Subtitle B,

Chapter V, as amended) or any enabling legislation or executive order relating

thereto. Without limiting the foregoing, Rexahn (i) is not a Person whose

property or interests in property are blocked pursuant to Section 1 of Executive

Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions

with Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.

49079 (2001)) and (ii) does not engage in

 

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any dealings or transactions, or is otherwise associated, with any such person.

Rexahn is in compliance with the USA Patriot Act of 2001.

 

                                  ARTICLE III

               Representations and Warranties Regarding Merger Sub

 

              The Company and Merger Sub each jointly and severally represents

and warrants to Rexahn as follows with respect to Merger Sub:

 

              SECTION 3.1   Organization; Capitalization. Merger Sub is a duly

organized and validly existing corporation in good standing under the laws of

the State of Delaware, authorized to issue only the Merger Sub Shares. On the

Closing Date there will be 1,000 issued and outstanding Merger Sub Shares, all

of which shall be fully paid and non-assessable and shall be owned solely by the

Company. There are no issued or outstanding options or warrants to purchase

Merger Sub Shares or any issued or outstanding securities of any nature

convertible into Merger Sub Shares, or any agreements or understandings to issue

any Merger Sub Shares, options or warrants.

 

              SECTION 3.2   Authorization.

 

               (a) Merger Sub has all requisite corporate power and authority to

execute and deliver this Agreement and to consummate the transactions

contemplated by this Agreement.

 

              (b) Except for the filing of the Articles of Merger and the

Certificate of Merger, the execution, delivery and performance of the Agreement

by Merger Sub and the consummation by Merger Sub of the transactions

contemplated by the Agreement will not require on the part of Merger Sub any

permit, approval, order or authorization of, or filing or registration with, or

allowance by, or consent of or notification to any Person.

 

              SECTION 3.3   Binding Agreement. This Agreement has been duly

executed and delivered by Merger Sub, and assuming the due execution and

delivery of this Agreement by the Company, CRS Delaware and Rexahn, constitutes

the valid and binding obligation of Merger Sub, enforceable against it in

accordance with its terms, except to the extent that its enforceability may be

limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,

moratorium, receivership and other similar laws affecting the enforcement of

creditors' rights in general and general principles of equity (regardless of

whether such enforceability is considered in a proceeding in equity or at law).

 

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              SECTION 3.4   No Conflicts. The execution, delivery and performance

of the Agreement by Merger Sub and the consummation by Merger Sub of the

transactions contemplated by the Agreement will not, with or without the giving

of notice or lapse of time, or both, violate, conflict with, result in a breach

of, constitute a default under or accelerate the performance required by any of

the terms, conditions or provisions of (i) the Certificate of Incorporation or

By-laws of Merger Sub or (ii) any statute, rule, regulation, order, decree,

ruling, judgment, arbitration award, law, ordinance or stipulation to which

Merger Sub or any of its properties or assets is subject, or result in the

creation of any Encumbrances on any of its properties or assets.

 

              SECTION 3.5   Broker's or Finder's Fees. No agent, broker, firm or

other Person acting on behalf of Merger Sub is, or will be, entitled to any

investment banking, commission, broker's or finder's fees from any of the

parties hereto, or from any Person controlling, controlled by or under common

control with any of the parties hereto, in connection with any of the

transactions contemplated by this Agreement.

 

               SECTION 3.6   Capitalization. On the date hereof, the authorized

capital stock of Merger Sub consists of 1,000 Merger Sub Shares.

 

              SECTION 3.7   No Business Activity; Financial Condition. Merger Sub

has been organized solely for the purpose of consummating the Merger and, since

its inception, has had no business activity of any nature other than those

related to its organization or as contemplated by this Agreement. Merger Sub has

no contracts or commitments to which it is a party, except for this Agreement

and other documents and instruments contemplated hereby in connection with the

Merger. Except for (i) the incurring of expenses of its organization, (ii) the

issuance of the Merger Sub Shares to the Company, (iii) the incurring of

expenses relating to this Agreement and the consummation of the transactions

contemplated by