Exhibit 99.1
AGREEMENT AND PLAN OF
MERGER
OF
HALOZYME THERAPEUTICS, INC.
(A NEVADA CORPORATION)
WITH
AND INTO
HALOZYME THERAPEUTICS, INC.
(A DELAWARE CORPORATION)
This AGREEMENT AND
PLAN OF MERGER (this “ Agreement ”)
dated as of November 14, 2007, by and between Halozyme
Therapeutics, Inc., a Nevada corporation (“
HALO-Nevada ”), and Halozyme Therapeutics,
Inc., a Delaware corporation and wholly-owned subsidiary of
HALO-Nevada (“ HALO-Delaware ”), is
made with respect to the following facts.
RECITALS
WHEREAS, HALO-Nevada
is a corporation duly organized and existing under the laws of
the State of Nevada;
WHEREAS,
HALO-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware;
WHEREAS, the
respective Boards of Directors for HALO-Nevada and
HALO-Delaware have determined that, for purposes of effecting
the reincorporation of HALO-Nevada in the State of Delaware,
it is advisable and to the advantage of said two corporations
and their stockholders that HALO-Nevada merge with and into
HALO-Delaware so that HALO-Delaware is the surviving
corporation on the terms provided herein (the “
Merger ”); and
WHEREAS, the
respective Board of Directors HALO-Nevada and HALO-Delaware,
the stockholders of HALO-Nevada, and the sole stockholder of
HALO-Delaware have adopted and approved this Agreement.
NOW THEREFORE, based
upon the foregoing, and in consideration of the mutual
promises and covenants contained herein and other good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties to this Agreement agree as
follows.
ARTICLE I
THE MERGER
1.1
The Merger; Surviving Corporation. Subject
to the terms and conditions set forth in this Agreement, at
the Effective Time (as defined in Section 1.5 below),
HALO-Nevada shall be merged with and into HALO-Delaware,
subject to and upon the terms and conditions provided in this
Agreement and the applicable provisions of the General
Corporation Law of the State of Delaware (the “
DGCL ”) and the applicable provisions of
the Nevada Revised Statutes (the “ NRS
”), and the separate existence of HALO-Nevada shall
cease. HALO-Delaware shall be the surviving entity (the
“ Surviving Corporation ”) and shall
continue to be governed by the DGCL.
1.2
Constituent Corporations. The name,
address, jurisdiction of organization and governing law of
each of the constituent corporations is as follows:
(a) HALO-Nevada:
Halozyme Therapeutics, Inc., a corporation organized under and
governed by the laws of the State of Nevada with an address of
11588 Sorrento Valley Road, Suite 17, San Diego, CA
92121; and
(b) HALO-Delaware: Halozyme Therapeutics, Inc., a
corporation organized under and governed by the laws of the
State of Delaware with an address of 11588 Sorrento Valley
Road, Suite 17, San Diego, CA 92121.
1.3
Surviving Corporation. Halozyme
Therapeutics, Inc., a corporation organized under the laws of
the State of Delaware, shall be the surviving
corporation.
1.4
Address of Principal Office of the Surviving
Corporation . The address of HALO-Delaware, as
the Surviving Corporation, shall be 11588 Sorrento Valley
Road, Suite 17, San Diego, CA 92121.
1.5
Effective Time . The Merger shall become
effective (the “ Effective Time ”),
on the date upon which the last to occur of the following
shall have been completed:
(a) This
Agreement and the Merger shall have been adopted and
recommended to the stockholders of HALO-Nevada by the Board of
Directors of HALO-Nevada and approved by a majority of the
voting power of the outstanding stock of HALO-Nevada entitled
to vote thereon, in accordance with the requirements of the
NRS;
(b) This
Agreement and the Merger shall have been adopted by the Board
of Directors of HALO-Delaware in accordance with the
requirements of the DGCL;
(c) The
effective date of the Merger as stated in the executed
Articles of Merger (the “ Articles of
Merger ”) filed with the Secretary of State for
the State of Nevada; and
(d) An executed
Certificate of Merger (the “ Certificate of
Merger ”) or an executed counterpart to this
Agreement meeting the requirements of the DGCL shall have been
filed with the Secretary of State of the State of
Delaware.
1.6
Effect of the Merger . The effect of the
Merger shall be as provided in this Agreement, the Articles of
Merger, the Certificate of Merger and the applicable
provisions of the DGCL and the NRS. Without limiting the
foregoing, from and after the Effective Time, all the
property, rights, privileges, powers and franchises of
HALO-Nevada shall vest in HALO-Delaware, as the Surviving
Corporation, and all debts, liabilities and duties of
HALO-Nevada shall become the debts, liabilities and duties of
HALO-Delaware, as the Surviving Corporation.
1.7
Certificate of Incorporation; Bylaws .
(a) From and
after the Effective Time, the Certificate of Incorporation of
HALO-Delaware shall be the Certificate of Incorporation of the
Surviving Corporation.
(b) From and
after the Effective Time, the Bylaws of HALO-Delaware as in
effect immediately prior to the Effective Time shall be the
Bylaws of the Surviving Corporation.
1.8
Officers and Directors . The officers of
HALO-Nevada immediately prior to the Effective Time shall
continue as officers of the Surviving Corporation and remain
officers until their successors are duly appointed or their
prior resignation, removal or death. The directors of
HALO-Nevada immediately prior to the Effective Time shall
continue as directors of the Surviving Corporation and shall
remain as directors for the term dictated by each
director’s class of directorship (e.g. Class I,
Class II or Class III) until their successors are
duly elected and qualified or their prior resignation, removal
or death.
ARTICLE II
CONVERSION OF
SHARES
2.1
Conversion of Common Stock of HALO-Nevada
. At the Effective Time by virtue of the Merger,
and without any action on part of the holders of any
outstanding shares of HALO-Nevada:
(a) each share
of common stock of HALO-Nevada, par value of $.001 per share,
issued and outstanding immediately prior to the Effective Time
shall be converted (without the surrender of stock
certificates or any other action) into one (1) fully paid
and non-assessable share of common stock, par value $0.001, of
HALO-Delaware’s common stock, $.001 par value per
share (the “ Common Stock
”); and
(b) the one
thousand shares of HALO-Delaware common stock owned by
HALO-Nevada shall be canceled at the Effective Time.
2.2
HALO-Nevada Options, Stock Purchase Rights, Convertible
Securities .
(a) From and
after the Effective Time, the Surviving Corporation shall
assume the obligations of HALO-Nevada under, and continue, the
option plans and all other employee benefit plans of
HALO-Nevada. Each outstanding and unexercised option, other
right to purchase, or security convertible into or exercisable
for, HALO-Nevada common stock (a “ Right
”) shall become, an option, right to purchase or a
security convertible into the Surviving Corporation’s
Common Stock, on the basis of one share of the Surviving
Corporation’s Common Stock for each one
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