This Agreement and Plan of Merger involves
Title: AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
Governing Law: Delaware Date: 8/17/2016
Industry: Software and Programming Sector: Technology
AGREEMENT OF MERGER AND
PLAN OF REORGANIZATION
BY AND AMONG
RASNA THERAPEUTICS, INC.
FALCONRIDGE HOLDINGS LIMITED
ARNA THERAPEUTICS LIMITED
Dated as of May 17, 2016
AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER AND PLAN OF REORGANIZATION (this “ Agreement ”) is made and entered into on May 17, 2016 by and among Rasna Therapeutics, Inc., a Delaware corporation (“ Parent ”), Falconridge Holdings Limited, a corporation organized under the laws of the British Virgin Islands (“ Falconridge ”), which is a wholly-owned subsidiary of Parent, and Arna Therapeutics Limited, a corporation formed under the laws of the British Virgin Islands (the “ Company ”).
W I T N E S S E T H :
WHEREAS, the Board of Directors of each of Falconridge, Parent and the Company have each determined that it is fair to and in the best interests of their respective corporations and stockholders for the Company to be merged with and into Falconridge (the “ Merger ”) upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of each of Parent, Falconridge and the Company have approved the Merger in accordance with the laws of the British Virgin Islands (“ BVI Law ”) and upon the terms and subject to the conditions set forth herein, in the applicable filings required pursuant to BVI Law;
WHEREAS, the requisite stockholders of the Company (the “ Stockholders ”) have approved this Agreement and the transactions contemplated and described hereby and thereby, including, without limitation, the Merger, and Parent, as the sole stockholder of Falconridge, has approved by written consent pursuant to Section 228(a) of the General Corporation Law of the State of Delaware, BVI Law, this Agreement and the transactions contemplated and described hereby and thereby, including, without limitation, the Merger; and
WHEREAS, the parties hereto intend that the Merger contemplated herein shall qualify as a reorganization within the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the “ Code ”), by reason of Section 368(a)(2)(E) of the Code.
NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, the parties hereto agree as follows:
Section 1.01 Merger . Subject to the terms and conditions of this Agreement, the Company shall be merged with and into Falconridge in accordance with BVI Law. At the Effective Time (as defined below), the separate legal existence of the Company shall cease, and Falconridge shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the “ Surviving Corporation ”) and shall continue its corporate existence under BVI Law under the name “Falconridge Holdings Limited”.
Section 1.02 Effective Time . The Merger shall become effective upon the filing of the appropriate certificates pursuant to the relevant provisions of BVI Law. The time at which the Merger shall become effective as aforesaid is referred to hereinafter as the “ Effective Time .”
Section 1.03 Closing . The closing of the Merger (the “ Closing ”) shall occur concurrently with the Effective Time (the “ Closing Date ”). The Closing shall occur at such time and place as shall be determined by the parties hereto. At the Closing, all of the documents, certificates, agreements, opinions and instruments referenced in Articles I will be executed and delivered as described therein. At the Effective Time, all actions to be taken at the Closing shall be deemed to be taken simultaneously.
Section 1.04 Certificate of Incorporation,
(a) The Certificate of Incorporation of Falconridge, as in effect immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation from and after the Effective Time until amended in accordance with applicable law and such Certificate of Incorporation.
Section 1.05 Assets and Liabilities . At the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises of a public as well as of a private nature, and be subject to all the restrictions, disabilities and duties of each of Falconridge and the Company (collectively, the “ Constituent Corporations ”); and all the rights, privileges, powers and franchises of each of the Constituent Corporations, and all property, real, personal and mixed, and all debts due to any of the Constituent Corporations on whatever account, as well as all other things in action or belonging to each of the Constituent Corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectively the property of the Surviving Corporation as they were of the several and respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in either of such Constituent Corporations shall not revert or be in any way impaired by the Merger; but all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.
Section 1.06 Manner and Basis of Converting Shares .
(a) At the Effective Time:
(i) each share of common stock of Falconridge that shall be outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into the right to receive one (1) share of common stock of the Surviving Corporation, so that at the Effective Time, Parent shall be the holder of all of the issued and outstanding shares of the Surviving Corporation;
(ii) each share of common stock of the Company (the “ Company Common Stock ”) beneficially owned by the Stockholders listed on Schedule 1.06(a)(ii) shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into the right to receive an aggregate of 35,668,290 shares of common stock, par value $0.01 per share, of Parent (the “ Parent Common Stock ”), with fractional shares of Parent Common Stock rounded up or down to the nearest whole share (the “ Merger Consideration ”); and
(iii) each share of Company Common Stock held in the treasury of the Company immediately prior to the Effective Time shall be cancelled in the Merger and cease to exist.
(b) After the Effective Time, there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time.
(c) At the Effective Time, the outstanding options to purchase Company Common Stock outstanding and set forth on Schedule 1.06(c) shall be assumed by the Parent and the holder thereof shall thereafter have the right to receive options to purchase Parent Common Stock, in such amounts and with such conditions and restrictions as set forth on Schedule 1.06(c) hereto (the “ Parent Options ”).
(d) At the Effective Time, the outstanding warrants to purchase Company Common Stock outstanding and set forth on Schedule 1.06(d) (the “Company Warrants”) shall be assumed by the Parent and the holder thereof shall thereafter have the right to receive warrants to purchase Parent Common Stock, in such amounts as set forth on Schedule 1.06(d) hereto and in the form substantially set forth as Exhibit D, attached hereto (the “Parent Warrants”).
Section 1.07 Surrender and Exchange of Certificates .
Promptly after the Effective Time and upon surrender of a certificate or certificates representing shares of Company Common Stock that were outstanding immediately prior to the Effective Time or an affidavit and indemnification in form reasonably acceptable to counsel for Parent stating that such Stockholder has lost its certificate or certificates or that such have been destroyed or upon receipt by the Parent of a list of Stockholders for whom shares of Company Common Stock held were un-certificated, Parent shall issue to each record holder of Company Common Stock surrendering such certificate, certificates or affidavit, a certificate or certificates registered in the name of such Stockholder representing the number of shares of Parent Common Stock that such Stockholder shall be entitled to receive as set forth in Sections 1.06(a)(ii) hereof. Until the certificate, certificates, affidavit or certified list of Stockholders is or are surrendered as contemplated by this Section 1.07, each certificate or affidavit that immediately prior to the Effective Time represented any outstanding shares of Company Common Stock shall be deemed at and after the Effective Time to represent only the right to receive upon surrender as aforesaid the Parent Common Stock specified in Schedule 1.06(a)(ii) for the holder thereof. Additionally, promptly after the Effective Time and upon surrender of certificates evidencing the Company Warrants and Company Options outstanding immediately prior to the Effective Time, the Parent shall deliver to the applicable holders of Company Warrants and/or Company Options, the Parent Warrants and Parent Options, respectively.
Section 1.08 Parent Stock . Parent agrees that it will cause the Parent Common Stock into which the Company Common Stock is converted at the Effective Time pursuant to Section 1.06(a)(ii) to be available for such purposes.
Section 1.09 Operation of Surviving Corporation . The Company acknowledges that upon the effectiveness of the Merger, and the material compliance by Parent and Falconridge with their respective duties and obligations hereunder, Parent shall have the absolute and unqualified right to deal with the assets and business of the Surviving Corporation as its own property without limitation on the disposition or use of such assets or the conduct of such business.
Section 1.10 Further Assurances . From time to time, from and after the Effective Time, as and when reasonably requested by Parent, the proper officers and directors of the Company as of the Effective Time shall, for and on behalf and in the name of the Company or otherwise, execute and deliver all such deeds, bills of sale, assignments and other instruments and shall take or cause to be taken such further actions as Parent, Falconridge or their respective successors or assigns reasonably may deem necessary or desirable in order to confirm or record or otherwise transfer to the Surviving Corporation title to and possession of all of the properties, rights, privileges, powers, franchises and immunities of the Company or otherwise to carry out fully the provisions and purposes of this Agreement.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Falconridge as follow:
Section 2.01 Organization, Standing, Subsidiaries, Etc .
(a) The Company is a corporation duly organized and existing in good standing under the laws of the British Virgin Islands and has all requisite power and authority (corporate and other) to carry on its business, to own or lease its properties and assets, to enter into this Agreement, the applicable certificates or filings required pursuant to BVI Law and to carry out the terms hereof and thereof. Copies of the Certificate of Incorporation of the Company that have been delivered to Parent and Falconridge prior to the execution of this Agreement are true and complete and have not since been amended or repealed.
(b) The Company has no subsidiaries or direct or indirect interest (by way of stock ownership or otherwise) in any firm, corporation, limited liability company, partnership, association or business.
Section 2.02 Qualification . The Company is duly qualified to conduct business as a foreign corporation and is in good standing in each jurisdiction wherein the nature of its activities or its properties owned or leased makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations or prospects of the Company taken as a whole (the “ Condition of the Company ”).
Section 2.03 Capitalization of the Company . The authorized capital stock of the Company consists of 10