EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER
(the “Merger Agreement”) is entered into as of
June 9, 2008 by and between Echo Therapeutics, Inc., a
Minnesota corporation (the “Company”), and Echo
Therapeutics, Inc., a Delaware corporation
(“Echo”).
RECITALS
WHEREAS, Echo desires to acquire all
the assets, and to assume all of the liabilities and obligations,
of the Company by means of a merger of the Company with an into
Echo, with Echo being the surviving corporation (the
“Merger”);
WHEREAS, Echo is a wholly-owned
subsidiary of the Company;
WHEREAS, Section 302A.621 of the
Minnesota Business Corporation Act (the “MBCA”) and
Section 253(c) of the Delaware General Corporation Law (the
“DGCL”) authorize the merger of a Minnesota corporation
into a Delaware corporation;
WHEREAS, Echo shall be the surviving
entity (the “Surviving Company”) and continue its
existence as a Delaware corporation; and
WHEREAS, the stockholders and Board
of Directors of the Company and Echo have approved this Merger
Agreement and the consummation of the Merger.
NOW, THEREFORE, the Company and Echo
hereby agree as follows:
1. Merger .
(a) At
the Effective Time (as defined below), the Company shall be merged
into Echo, the separate existence of the Company shall cease and
the Surviving Company shall be the surviving entity and continue
its existence as a Delaware corporation.
(b) The
Merger shall become effective on the date that a Certificate of
Ownership and Merger with respect to the Merger is accepted for
filing by the Office of the Secretary of State of the State of
Delaware (the “Effective Time”) and all other filings
or recordings required by the MBCA and the DGCL in connection with
the Merger become effective.
2. Transfer, Conveyance and
Assumption . At the Effective Time, the Surviving Company shall
continue in existence as the surviving corporation, and without
further transfer, succeed to and possess all of the rights,
privileges and powers of the Company, and all of the assets and
property of whatever kind and character of the Company shall vest
in the Surviving Company without further act or deed; thereafter,
the Surviving Company shall be liable for all of the liabilities
and obligations of the Company, and any claim or judgment against
the Company may be enforced against the Surviving Company in
accordance with the MBCA and the DGCL.
3. Further Assurances .
If at any time Echo shall consider or be advised that any further
assignment, conveyance or assurance is necessary or advisable to
vest, perfect or confirm of record in the Surviving Company the
title to any property or right of the Company, or otherwise to
carry
out the
provisions hereof, the proper representatives of the Company as of
the Effective Time shall execute and deliver any and all proper
deeds, assignments, and assurances and do all things necessary or
proper to vest, perfect or convey title to such property or right
in the Surviving Company, and otherwise to carry out the provisions
hereof.
4. Merger Consideration
. At the Effective Time, each share of common stock, par value
$0.01, of the Company (the “Company Common Stock”)
issued and outstanding immediately prior to the Effective Time
shall be converted into one (1) issued and outstanding share
of common stock, par value $0.01, of the Surviving Company (the
“Surviving Company Common Stock”), and from and after
the Effective Time, the holders of all said issued and outstanding
shares of the Company shall automatically become holders of shares
of the Surviving Company, whether or not certificates representing
said shares are then issued and delivered in accordance with
Section 5 below.
5. Stock Certificates .
On and after the Effective Time, all of the outstanding
certificates which prior to that time represented shares of Company
Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the shares of Surviving Co
