Exhibit 10.1
AGREEMENT AND PLAN OF
MERGER
BETWEEN
VIRAL GENETICS,
INC.,
(a California
corporation)
AND
V-CLIP, INC.
(a California
corporation)
AND
VIRAL GENETICS,
INC.,
(a Delaware
corporation)
THIS AGREEMENT AND PLAN OF MERGER (this
“Agreement”) is made and entered into as of October __,
2008, between Viral Genetics, Inc., a California corporation
(“Viral”) and V-Clip Pharmaceuticals, Inc., a
California corporation (“V-Clip”) and Viral Genetics,
Inc., a Delaware corporation (“Viral
Delaware”).
This Agreement contemplates a tax-free merger of
V-Clip into Viral and the issuance of Viral Delaware securities to
the shareholders of V-Clip in a reorganization pursuant to the
Internal Revenue Code Section 368(a)(2)(D).
RECITALS
WHEREAS, Viral is a corporation duly organized
and existing under the laws of the State of California and a wholly
owned subsidiary of Viral Delaware; and
WHERAS, V-Clip is a corporation duly organized
and existing under the laws of the State of California;
and
WHEREAS, further to a Memorandum of
Understanding dated July 22, 2008between V-Clip, Viral Delaware,
and solely with respect to Section 10 and Exhibit A(ii)-(iii)
therein, University License Equity Holdings, Inc., a Colorado
non-profit corporation (“ULEHI”), the Board of
Directors of Viral and the Board of Directors of V-Clip deem it
advisable to merge V-Clip into Viral so that Viral is the surviving
corporation on the terms provided herein (the
“Merger”).
NOW, THEREFORE, in consideration of the mutual
agreements contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
MERGER
Section 1.1 The Merger . After
satisfaction or, to the extent permitted hereunder, waiver of all
conditions to the Merger, and subject to the applicable provisions
of the California Corporations Code, V-Clip will merge with and
into Viral and Viral shall file this Agreement and Plan of Merger
with the Secretary of State of the State of California in
accordance with the provisions of the California Corporations Code
and shall make all other filings or recordings required by
California in connection with the Merger. The Merger shall become
effective upon the later filing of such Agreement and Plan of
Merger with the Secretary of State of the State of California, or
at such later time as may be provided for in such Agreement and
Plan of Merger (the “Effective Time”). Upon the
Effective Time, the separate corporate existence of V-Clip shall
cease and Viral shall be the surviving corporation (the
“Surviving Corporation”).
Section 1.2 Conditions to the
Merger . The respective obligation of each party to effect
the Merger is subject to the satisfaction or waiver (except as
provided in this Agreement) of the following conditions:
(a) This Agreement shall have been ratified by
the sole shareholder of Viral, that is, Viral Delaware, in
accordance with the requirements of the Delaware General
Corporation Law and the Certificate of Incorporation and Bylaws of
Viral;
(b) This Agreement shall have been adopted by
the holders of at least a majority of the outstanding voting power
of V-Clip in accordance with the requirements of the California
Corporations Code and the Certificate of Incorporation and Bylaws
of V-Clip.
Section 1.3 Transfer, Conveyance and
Assumption . At the Effective Time, Viral shall continue in
existence as the Surviving Corporation and, without further
transfer, succeed to and possess all rights, privileges, powers and
franchises of V-Clip, and all of the assets and property of
whatever kind and character of V-Clip shall vest in Viral, as the
Surviving Corporation without further deed; thereafter, Viral, as
the Surviving Corporation, shall be liable for all of the
liabilities and obligations of V-Clip and any claim or judgment
against V-Clip may be enforced against Viral, as the Surviving
Corporation.
Section 1.4 Certificate of Incorporation;
Bylaws.
(a) From and after the Effective Date, the
Certificate of Incorporation of Viral shall be the Certificate of
Incorporation of the Surviving Corporation.
(b) From and after the Effective Date, the
ByLaws of Viral shall be the Bylaws of the Surviving
Corporation.
Section 1.5 Directors and Officers of the
Surviving Corporation . From and after the Effective Time,
the directors and officers of Viral serving as directors or
officers of Viral immediately prior to the Effective Time shall be
the directors and officers of the Surviving Corporation.
ARTICLE II
CONVERSION OF
SHARES
Section 2.1 Conversion of Stock.
Upon the Effective Time, by virtue of the Merger and without any
action of the part of the holder of any outstanding share of
V-Clip, other than shares of dissenting stockholders under
California law, each share of V-Clip shall be converted to 3,706
shares of Viral Delaware, rounded to the nearest whole number of
shares. Notwithstanding the foregoing, the University License
Equity Holdings, Inc., a Colorado nonprofit corporation, shall not
receive shares of Viral Delaware shares, all as specifically set
forth on Exhibit A to that certain Consent and Understanding of
Viral Delaware of even date herewith, and thereupon each share of
V-Clip issued and outstanding shall be canceled and no
consideration be issued in respect thereof. In addition, Viral
Delaware shall issue such Common Stock and warrants to purchase
Common Stock of Viral Delaware, all as more specifically set forth
on said Exhibit A of said Consent and Understanding. The
converted shares and warrants described herein are jointly referred
to as the “Merger Securities.”
Section 2.2 Shares of Dissenting
Shareholders . Not
