PLAN OF MERGER AND AGREEMENT
of
PROTALEX, INC.
a New Mexico corporation
with and into
PROTALEX, INC.
a Delaware corporation
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PROTALEX, INC.
a Delaware corporation
to be the surviving corporation
Plan of
Merger and Agreement (this "Agreement") by and between
Protalex,
Inc., a New Mexico corporation (the "New
Mexico Corporation"), and Protalex,
Inc., a Delaware corporation (the "Delaware
Corporation" or "Surviving
Corporation"), said corporations being
hereinafter sometimes referred to
collectively as the "Constituent
Corporations";
WITNESSETH:
WHEREAS,
the Delaware Corporation is a corporation duly organized and
existing under laws of the State of
Delaware;
WHEREAS,
the New Mexico Corporation is a corporation duly organized and
existing under the laws of the State of New
Mexico;
WHEREAS,
on the date of this Agreement, the New Mexico Corporation has
authority to issue 40,000,000 shares of
common stock, no par value, of which
16,695,034 shares are issued and
outstanding and entitled to vote to approve
this Agreement;
WHEREAS,
on the date of this Agreement, the Delaware Corporation has
authority to issue 40,000,000 shares of
common stock, $0.00001 par value, of
which 100 shares are issued and
outstanding, entitled to vote to approve this
Agreement, and owned by the New Mexico
Corporation;
WHEREAS,
the respective Boards of Directors of the New Mexico
Corporation
and the Delaware Corporation have
determined that it is advisable that the New
Mexico Corporation be merged with and into
the Delaware Corporation, in
accordance with the applicable provisions
of the laws of the State of New Mexico
and the State of Delaware permitting such
merger; and
WHEREAS,
the respective Boards of Directors of the New Mexico
Corporation
and the Delaware Corporation have approved
this Agreement and the Board of
Directors of the New Mexico Corporation has
directed that this Agreement be
submitted to a vote of its respective
shareholders;
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NOW
THEREFORE, in consideration of the foregoing and of the
agreements,
covenants, and provisions hereinafter set
forth, the New Mexico Corporation and
the Delaware Corporation do hereby agree as
follows:
ARTICLE I
New Mexico
Corporation and the Delaware Corporation shall be merged into a
single corporation, in accordance with
applicable provisions of the laws of the
State of New Mexico and the State of
Delaware, by the New Mexico Corporation
merging into the Delaware Corporation,
which shall be the surviving corporation.
ARTICLE II
Upon the
Effective Date (as hereinafter defined):
1. The New
Mexico Corporation shall be merged with and into the Delaware
Corporation, shall be the surviving
corporation, and the separate existence of
the New Mexico Corporation shall cease.
2. The
Surviving Corporation shall thereupon and thereafter possess all
of
the rights, privileges, immunities, powers,
purposes and franchises, of a public
as well as of a private nature, of each of
the Constituent Corporations and all
property, real, personal and mixed, all
debts due on whatever account, including
subscriptions to shares and all other
choses in action, and all and every other
asset or interest of, or belonging to, or
due to each of the Constituent
Corporations shall be taken and deemed to
be transferred to and vested in the
Surviving Corporation without further act
or deed, and the title to all
property, real, personal or mixed, or any
interest therein, vested in either of
the Constituent Corporations shall not
revert or be in any way impaired by
reason of the merger.
3. The
Surviving Corporation shall thenceforth assume and be liable
for
all of the liabilities, obligations and
penalties of each of the Constituent
Corporations, and any claim existing or
action or proceeding pending by or
against either of the Constituent
Corporations, or any shareholder, officer or
director of either of the Constituent
Corporations, may be prosecuted to
judgment as if the merger had not taken
place, or the Surviving Corporation may
be substituted in its place; and neither
the rights of creditors nor any liens
upon the property of either of the
Constituent Corporations shall be impaired by
the merger, but shall attach to the
Surviving Corporation as if incurred or
contracted by it. Without limiting the
generality of the foregoing: (i) the
Surviving Corporation shall thenceforth be
bound by the Stock Option Plan of the
New Mexico Corporation (the "Stock Option
Plan"), and shall for all purposes be
recognized as the "Company" in such Stock
Option Plan, and (ii) the Surviving
Corporation shall thenceforth be bound by
the terms of each of the stock option
agreements entered into between the New
Mexico Corporation and the optionees
thereunder pursuant to the Stock Option
Plan, and shall for all purposes be
recognized as the "Company" in such
agreements.
4. Shares of
common stock, $0.00001 par value, of the Surviving
Corporation shall be made available for
future grants under the Stock Option
Plan in an amount equal to the number of
shares of common stock, no par value,
of the New Mexico Corporation available for
future grants under the Stock Option
Plan on the Effective Date.
2
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5. The
Certificate of Incorporation of the Delaware Corporation as in
effect on the Effective Date shall be and
remain the Certificate of
incorporation of the Surviving Corporation
until the same shall be appropriately
amended or repealed.
6. The
By-laws of the Delaware Corporation as in effect on the
Effective
Date shall be and remain the By-laws of the
Surviving Corporation until the same
shall be properly amended or repealed.
7. The
directors and officers of the Delaware Corporation shall remain
the
same as they were immediately prior to the
Effective Date.
ARTICLE III
The Surviving Corporation
shall comply with the provisions of the New
Mexico Business Corporation Act with
respect to foreign corporations and hereby
agrees that (i) it may be served with
process in the State of New Mexico in any
proceeding for the enforcement of any
obligation of the New Mexico Corporation
and in any proceeding for the enforcement
of the rights of a dissenting
shareholder of the New Mexico Corporation
against the Surviving Corporation;
(ii) the Secretary of State of New Mexico
is irrevocably appointed as its agent
to ac
