EXHIBIT 2.1
AGREEMENT AND PLAN OF
MERGER
BETWEEN ICOS WASHINGTON
CORPORATION,
A WASHINGTON
CORPORATION,
AND
ICOS CORPORATION,
A DELAWARE
CORPORATION
THIS AGREEMENT AND PLAN OF MERGER
dated as of July 22, 2005 (this “Agreement”) is between
ICOS Washington Corporation, a Washington corporation (“ICOS
Washington”), and ICOS Corporation, a Delaware corporation
(“ICOS Delaware”). ICOS Washington and ICOS Delaware
are also referred to herein as the “Constituent
Corporations.”
RECITALS
A. ICOS Washington is a corporation
duly organized and existing under the laws of the state of
Washington and has authorized capital of 102,000,000 shares, $0.01
par value per share, of which 100,000,000 shares are designated
“Common Stock” and 2,000,000 shares are designated
“Preferred Stock,” of which 1,000,000 shares are
designated Series A Junior Participating Preferred Stock
(“Washington Series A Preferred”). As of the date
hereof, 100 shares of Common Stock were issued and outstanding, all
of which are held by ICOS Delaware, and no shares of Preferred
Stock were issued and outstanding.
B. ICOS Delaware is a corporation
duly organized and existing under the laws of the state of Delaware
and has authorized capital of 102,000,000 shares, $0.01 par value
per share, of which 100,000,000 are designated “Common
Stock” and 2,000,000 shares are designated “Preferred
Stock,” of which 1,000,000 shares are designated Series A
Junior Participating Preferred Stock (“Delaware Series A
Preferred”). As of July 19, 2005, 64,033,187 shares of Common
Stock were issued and outstanding, and no shares of Preferred Stock
were issued and outstanding.
C. The Board of Directors of ICOS
Delaware has determined that, for the purpose of effecting the
reincorporation of ICOS Delaware in the state of Washington, it is
advisable and in the best interests of ICOS Delaware and its
stockholders that ICOS Delaware merge with and into ICOS Washington
upon the terms and conditions herein provided.
D. The respective Boards of
Directors of ICOS Delaware and ICOS Washington have approved this
Agreement and have directed that this Agreement be submitted to a
vote of their respective stockholders and sole shareholder, and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of
the mutual agreements and covenants set forth herein, ICOS Delaware
and ICOS Washington hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I.
MERGER
1.1 Merger. In accordance
with the provisions of this Agreement, the Delaware General
Corporation Law and the Washington Business Corporation Act, ICOS
Delaware shall be merged with and into ICOS Washington (the
“Merger”), the separate existence of ICOS Delaware
shall cease and ICOS Washington shall survive the Merger and shall
continue to be governed by the laws of the state of Washington, and
ICOS Washington shall be, and is herein also referred to as, the
“Surviving Corporation,” and the name of the Surviving
Corporation shall be changed to ICOS Corporation.
1.2 Filing and Effectiveness.
The Merger shall become effective when the following actions shall
have been completed:
(a) This Agreement and the Merger
shall have been adopted and approved by the stockholders of ICOS
Delaware and the sole shareholder of ICOS Washington, in accordance
with the respective requirements of the Delaware General
Corporation Law and the Washington Business Corporation
Act;
(b) All of the conditions precedent
to the consummation of the Merger specified in this Agreement shall
have been satisfied or duly waived by the party entitled to
satisfaction thereof;
(c) Executed Articles of Merger
shall have been filed with the Washington Secretary of State;
and
(d) An executed Certificate of
Ownership and Merger shall have been filed with the Delaware
Secretary of State.
The date and time when the Merger
shall become effective, as aforesaid, is herein called the
“Effective Date of the Merger.”
1.3 Effect of the Merger.
Upon the Effective Date of the Merger, the separate existence of
ICOS Delaware shall cease and ICOS Washington, as the Surviving
Corporation, shall (i) continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the
Effective Date of the Merger; (ii) be subject to all actions
previously taken by its and ICOS Delaware’s Board of
Directors; (iii) succeed, without other transfer, to all of the
assets, rights, powers and property of ICOS Delaware in the manner
as more fully set forth in Chapter 23B.11.060 of the Washington
Business Corporation Act; (iv) continue to be subject to all of its
debts, liabilities and obligations as constituted immediately prior
to the Effective Date of the Merger; and (v) succeed, without other
transfer, to all of the debts, liabilities and obligations of ICOS
Delaware in the same manner as if ICOS Washington had itself
incurred them, all as more fully provided under the applicable
provisions of the Washington Business Corporation Act and the
Delaware General Corporation Law.
2
II.
CHARTER DOCUMENTS, DIRECTORS AND
OFFICERS
2.1 Articles of
Incorporation. The Articles of Incorporation of ICOS Washington
as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Articles of
Incorporation of the Surviving Corporation, except that Article 1
of the Articles of Incorporation of the Surviving Corporation is
hereby amended in its entirety to read as follows:
“ARTICLE I.
NAME
The name of this Corporation is ICOS
Corporation.”
2.2 Bylaws. The Bylaws of
ICOS Washington as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable
law.
2.3 Directors and Officers.
The directors of ICOS Delaware immediately prior to the Effective
Date of the Merger shall each become, at the Effective Date of the
Merger, a Director of the Surviving Corporation to serve as a
director of the corresponding class in which such director served
in ICOS Delaware, for the terms of office to which each was elected
or appointed to the Board of Directors of ICOS Delaware or until
their death, resignation or removal from office or as otherwise
provided by law or the Articles of Incorporation or Bylaws of the
Surviving Corporation. The officers of ICOS Delaware immediately
prior to the Effective Date of the Merger shall be the officers of
the Surviving Corporation until their respective successors
s
