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Exhibit
10.1
AGREEMENT AND PLAN OF
REORGANIZATION
This AGREEMENT AND PLAN OF
REORGANIZATION (this “Agreement”), dated as of
November 13, 2007, is among Abraxis BioScience, Inc., a
Delaware corporation (the “Company”), APP
Pharmaceuticals, Inc., a Delaware corporation and a direct,
wholly-owned subsidiary of the Company (“HoldingCo”),
and Abraxis BioScience, LLC, a Delaware limited liability company
and a direct, wholly-owned subsidiary of HoldingCo
(“MergerCo”).
RECITALS
WHEREAS, as of the close of
business on October 31, 2007, the authorized capital stock of
the Company consisted of (i) 350,000,000 shares of common
stock, par value $0.001 per share (“Company Common
Stock”), of which 159,922,052 shares were issued and
outstanding, 35,494,571 shares were reserved for issuance under the
Company’s Plans (as defined below) and upon exercise of
outstanding Company Awards (as hereinafter defined) and 6,705,116
shares were held in treasury, and (ii) 6,000,000 shares of
preferred stock, par value $0.001 per share (“Company
Preferred Stock”), of which none is outstanding.
WHEREAS, as of the date
hereof, the authorized capital stock of HoldingCo consists of
(i) 350,000,000 shares of common stock, par value $0.001 per
share (“HoldingCo Common Stock”), of which 1,000 shares
are issued and outstanding and no shares are held in treasury, and
(ii) 6,000,000 shares of preferred stock, par value $0.001 per
share (“HoldingCo Preferred Stock”), of which none is
outstanding.
WHEREAS, as of the date
hereof, 100% of the membership interests of MergerCo
(“MergerCo Interest”) was held by HoldingCo.
WHEREAS, the designations,
rights, powers and preferences, and the qualifications, limitations
and restrictions thereof, of the HoldingCo Preferred Stock and the
HoldingCo Common Stock are the same as those of the Company
Preferred Stock and the Company Common Stock,
respectively.
WHEREAS, the Certificate of
Incorporation and the Bylaws of HoldingCo immediately after the
Effective Time (as hereinafter defined) will contain provisions
identical to the Amended and Restated Certificate of Incorporation
and the Amended and Restated Bylaws of the Company immediately
before the Effective Time (other than with respect to matters
excepted by Section 251(g) of the General Corporation Law of
the State of Delaware (the “DGCL”)).
WHEREAS, the directors of the
Company immediately prior to the Merger (as hereinafter defined)
will be the directors of HoldingCo as of the Effective
Time.
WHEREAS, the officers of the
Company immediately prior to the Merger will be the officers of
HoldingCo as of the Effective Time.
WHEREAS, HoldingCo and
MergerCo are newly formed entities organized for the purpose of
participating in the transactions herein contemplated.
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WHEREAS, the Company desires
to create a new holding company structure by merging the Company
with and into MergerCo with MergerCo being the surviving entity
(sometimes hereinafter referred to as the “Surviving
Company”), and converting each outstanding share of Company
Common Stock into one share of HoldingCo Common Stock, all in
accordance with the terms of this Agreement.
WHEREAS, the Boards of
Directors of HoldingCo and the Company and the sole member of
MergerCo have approved this Agreement and the merger of the Company
with and into MergerCo upon the terms and subject to the conditions
set forth in this Agreement (the “Merger”).
WHEREAS, the parties intend,
by executing this Agreement, to adopt a plan of reorganization
within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the “Code”), and to cause the
Merger to qualify as a reorganization under the provisions of
Section 368(a) of the Code.
NOW, THEREFORE, in
consideration of the premises and the covenants and agreements
contained in this Agreement, and intending to be legally bound
hereby, the Company, HoldingCo and MergerCo hereby agree as
follows:
ARTICLE 1
THE MERGER
1.1 The Merger . In
accordance with Sections 251(g) and 264 of the DGCL and
Section 18-209 of the Delaware Limited Liability Company Act
(the “DLLCA”), and subject to and upon the terms and
conditions of this Agreement, the Company shall, at the Effective
Time, be merged with and into MergerCo, the separate corporate
existence of the Company shall cease and MergerCo shall continue as
the Surviving Company. At the Effective Time, the effect of the
Merger shall be as provided in Section 259 of the DGCL and
Section 18-209(g) of the DLLCA.
1.2 Effective Time .
The Merger shall become effective upon the filing, on or after the
date hereof, of a copy of this Agreement or a Certificate of Merger
relating hereto with the Secretary of State of the State of
Delaware (the time of such filing being referred to herein as the
“Effective Time”).
1.3 Organizational
Documents of the Surviving Company .
1.3.1 From and after the
Effective Time, the certificate of formation of MergerCo, as in
effect immediately prior to the Effective Time, shall continue in
full force and effect as the certificate of formation of the
Surviving Company until thereafter amended as provided by
law.
1.3.2 At the Effective Time,
the Limited Liability Company Agreement of MergerCo shall be
amended and restated to be in the form attached as
Exhibit A hereto and, as so amended and restated, shall
be the limited liability company agreement of the Surviving Company
(the “Surviving Company LLC Agreement”) until
thereafter amended as provided therein or by applicable
law.
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1.4 Directors . The
directors of the Company immediately prior to the Effective Time
shall be the initial directors of the Surviving Company and will
hold office from the Effective Time until their successors are duly
elected or appointed and qualified in the manner provided in the
Surviving Company LLC Agreement or as otherwise provided by
law.
1.5 Officers . The
officers of the Company immediately prior to the Effective Time
shall be the initial officers of the Surviving Company and will
hold office from the Effective Time until their successors are duly
elected or appointed and qualified in the manner provided in the
Surviving Company LLC Agreement or as otherwise provided by
law.
1.6 Additional Actions
. Subject to the terms of this Agreement, the parties hereto shall
take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Merger and to comply with
the requirements of Section 251(g) of the DGCL. If, at any
time after the Effective Time, the Surviving Company shall consider
or be advised that any deeds, bills of sale, assignments,
assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in
the Surviving Company its right, title or interest in, to or under
any of the rights, properties or assets of either of MergerCo or
the Company acquired or to be acquired by the Surviving Company as
a result of, or in connection with, the Merger or otherwise to
carry out this Agreement, the officers of the Surviving Company
shall be authorized to execute and deliver, in the name and on
behalf of each of MergerCo and the Company, all such deeds, bills
of sale, assignments and assurances and to take and do, in the name
and on behalf of each of MergerCo and the Company or otherwise, all
such other actions and things as may be necessary or desirable to
vest, perfect or confirm any and all right, title and interest in,
to and under such rights, properties or assets in the Surviving
Company or otherwise to carry out this Agreement.
1.7 Conversion of
Securities . At the Effective Time, by virtue of the Merger and
without any action on the part of HoldingCo, MergerCo, the Company
or the holder of any of the following securities:
1.7.1 Each share of Company
Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares held in treasury, which shall be
automatically canceled and retired without the payment of any
consideration therefor) shall be converted into one duly issued,
fully paid and nonassessable share of HoldingCo Common
Stock.
1.7.2 The MergerCo Interest
issued and outstanding immediately prior to the Effective Time
shall remain outstanding and thereafter represent 100% of the
membership interest of the Surviving Company.
1.7.3 Each share of HoldingCo
Common Stock owned by the Company immediately prior to the Merger
shall automatically be canceled and retired and shall cease to
exist.
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1.7.4 From and after the
Effective Time, holders of certificates formerly evidencing Company
Common Stock shall cease to have any rights as stockholders of the
Company, except as provided by law; provided ,
however , that such holders s
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