Agreement and Plan of
Merger
Agreement and Plan of Merger
(“Agreement”) dated as of September 11, 2008, by
and between ARIAD Pharmaceuticals, Inc., a Delaware corporation
(“ARIAD”) and ARIAD Gene Therapeutics, Inc., a Delaware
corporation (“AGTI”).
WHEREAS, ARIAD
owns shares of AGTI comprising approximately 80% of the outstanding
shares of AGTI;
WHEREAS, the
Boards of Directors of the respective parties hereto have each
approved this Agreement and the merger of AGTI with and into ARIAD,
and deem it advisable and in the best interests of their respective
shareholders to merge AGTI with and into ARIAD (the
“Merger”) in accordance with Section 251 of the
Delaware General Corporation Law (“DGCL”) and pursuant
to this Agreement and the Certificate of Merger attached hereto as
Annex I and incorporated herein (the “Certificate of
Merger”);
WHEREAS, the
holders of a majority of the common stock of AGTI (the “AGTI
Common Stock”) outstanding and entitled to vote thereupon as
required by Section 251 of the DGCL have approved this
Agreement and the transactions contemplated herein;
NOW, THEREFORE, in
consideration of the premises and the representations, warranties
and agreements herein contained, the parties hereto agree that AGTI
shall be merged with and into ARIAD, which shall be the corporation
surviving the Merger, and that the terms and conditions of the
Merger, the mode of carrying it into effect, and the manner of
converting and exchanging shares shall be as follows:
(a) Subject
to and in accordance with the provisions of this Agreement, as
promptly as practicable on or after the date hereof, the
Certificate of Merger shall be executed and acknowledged by each of
ARIAD and AGTI and thereafter delivered to the Secretary of State
of Delaware for filing, as provided in Section 251 of the
DGCL. The Merger shall become effective at such time as the
Certificate of Merger is filed as required by law with the
Secretary of State of Delaware or such date, not more than thirty
days after such filing, as may be specified in the Certificate of
Merger (the “Effective Time”). At the Effective Time,
the separate existence of AGTI shall cease and AGTI shall be merged
with and into ARIAD (AGTI and ARIAD being sometimes referred to
collectively herein as the “Constituent Corporations,”
and ARIAD, the corporation designated in the Certificate of Merger
as the surviving corporation, being sometimes referred to herein as
the “Surviving Corporation”).
(b) ARIAD and
AGTI, respectively, shall take all such actions as may be necessary
or appropriate in order to effectuate the Merger. In the event that
at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Agreement
and to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of
either of the Constituent Corporations, the officers and directors
of each of the Constituent Corporations as of the Effective Time
shall take all such further action.
ARTICLE II
TERMS OF CONVERSION
At the
Effective Time, by virtue of the Merger and without any action on
the part of ARIAD, AGTI, or the holders of any of the following
securities:
(a) Each
share of common stock of ARIAD (the “ARIAD Common
Stock”) issued and outstanding immediately prior to the
Effective Time shall not be converted or otherwise affected by the
Merger, and each such share shall represent one validly issued,
fully paid and nonassessable share of common stock of the Surviving
Corporation.
(b) The
shares of preferred stock of ARIAD issued and outstanding
immediately prior to the Effective Time, if any, shall not be
converted or otherwise affected by the Merger, and each such share
shall represent one validly issued, fully paid and nonassessable
share of the particular series of preferred stock of the Surviving
Corporation.
(c) All
issued and outstanding shares of AGTI Common Stock owned by ARIAD
immediately prior to the Effective Time shall be cancelled and
shall cease to exist, and no consideration shall be delivered in
exchange therefor.
(d) Each
share of AGTI Common Stock issued and outstanding immediately prior
to the Effective Time (excluding shares to be cancelled in
accordance with subparagraph (c) above and, except as provided
in Article III, subsection (d), the Appraisal Shares) shall be
converted into the right to receive two (2.0) (the “Exchange
Ratio”) fully-paid and non-assessable shares of ARIAD Common
Stock (the “Merger Consideration”). At the Effective
Time, all such shares of AGTI Common Stock shall no longer be
outstanding and shall automatically be cancelled and shall cease to
exist, and each holder of a certificate that immediately prior to
the Effective Time represented any such shares of AGTI Common Stock
(each, a “Certificate”) shall cease to have any rights
with respect thereto, except the right to receive the Merger
Consideration. The Exchange Ratio shall be adjusted to reflect
fully the effect of any share split, reverse split, share dividend
(including any dividend or distribution of securities convertible
into ARIAD Common Stock), reorganization, recapitalizati
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