AGREEMENT AND PLAN OF
MERGER
OF PURE BIOSCIENCE
(a California
corporation)
AND
PURE
BIOSCIENCE, INC.
(a Delaware
corporation)
This Agreement and Plan of Merger
, dated as of March 24, 2011 (the
“ Agreement ”), is made by and between
Pure Bioscience, a California corporation (“ Pure
California ”), and Pure Bioscience, Inc., a
Delaware corporation and wholly-owned subsidiary of Pure California
(“ Pure Delaware ”). Pure California and
Pure Delaware are sometimes referred to herein as the “
Constituent Corporations .”
RECITALS
Whereas
, Pure Delaware is a corporation duly
organized and existing under the laws of the State of Delaware and
has an authorized capital of 105,000,000 shares, 100,000,000 of
which are designated common stock, par value $0.01 per share, and
5,000,000 of which are designated preferred stock, par value $0.01
per share. The preferred stock of Pure Delaware is undesignated as
to series, rights, preferences, privileges or restrictions. As of
the date of this Agreement, 100 shares of common stock were issued
and outstanding, all of which were held by Pure California, and no
shares of preferred stock were issued and outstanding.
Whereas
, Pure California is a corporation duly organized
and existing under the laws of the State of California and has an
authorized capital of 55,000,000 shares, 50,000,000 of which are
designated common stock, no par value, and 5,000,000 of which are
designated preferred stock, no par value. The preferred stock of
Pure California is undesignated as to series, rights, preferences,
privileges or restrictions. As of the date of this Agreement,
37,296,986 shares of common stock and no shares of preferred stock
were issued and outstanding.
Whereas
, the Board of Directors of Pure California has
determined that, for the purpose of effecting the reincorporation
of Pure California in the State of Delaware, it is advisable and in
the best interests of Pure California and its shareholders that
Pure California merge with and into Pure Delaware upon the terms
and conditions herein provided.
Whereas
, the respective Boards of Directors of Pure
Delaware and Pure California have approved and declared the
advisability of this Agreement, and have directed that this
Agreement be submitted to a vote of their respective sole
stockholder and shareholders and executed by the undersigned
officers.
Whereas,
shareholders holding a majority of
the outstanding common stock of Pure California approved this
Agreement on February 10, 2011.
Whereas
, the Merger is intended to qualify as a
transaction governed by Section 368(a) of the Internal Revenue Code
of 1986, as amended.
AGREEMENT
In consideration of the mutual agreements and
covenants set forth herein, Pure Delaware and Pure California
hereby agree, subject to the terms and conditions hereinafter set
forth, as follows:
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1.
MERGER
1.1
Merger. In accordance with the provisions of this
Agreement, the Delaware General Corporation Law (“
DGCL ”) and the California General Corporation
Law (“ CGCL ”), Pure California shall be
merged with and into Pure Delaware (the “
Merger ”), the separate existence of Pure
California shall cease and Pure Delaware shall survive the Merger
and shall continue to be governed by the laws of the State of
Delaware, and Pure Delaware shall be, and is herein sometimes
referred to as, the “Surviving Corporation”. The name
of the Surviving Corporation shall be “Pure Bioscience,
Inc.”
1.2
Filing and Effectiveness. Subject to applicable law,
the Merger shall become effective when the following actions shall
have been completed:
(a) This
Agreement shall have been adopted by the sole stockholder of Pure
Delaware and the principal terms of this Agreement shall have been
approved by the shareholders of Pure California in accordance with
the requirements of the DGCL and the CGCL, which adoption and
approval by such sole stockholder of Pure Delaware and by the
shareholders of Pure California has occurred as of February 28,
2011 and February 10, 2011, respectively;
(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;
and
(c) A
certificate of merger meeting the requirements of the DGCL (the
“ Certificate of Merger ”) shall have
been filed with the Secretary of State of the State of Delaware and
this Agreement, together with a Certificate of Ownership as
provided in Section 1110 of the CGCL or the Certificate of
Merger, shall have been filed with the Secretary of State of the
State of California or, in the case of the applicable requirements
of California law, as otherwise provided by the CGCL.
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 Pure California shall cease and
Pure Delaware, as the Surviving Corporation, (i) shall
continue to possess all of its assets, rights, powers and property
as constituted immediately prior to the Effective Date of the
Merger, (ii) shall be subject to all actions previously taken
by its and Pure California’s Board of Directors,
(iii) shall succeed, without other transfer, to all of the
assets, rights, powers and property of Pure California in the
manner more fully set forth in Section 259 of the DGCL,
(iv) shall continue to be subject to all of the debts,
liabilities and obligations of Pure Delaware as constituted
immediately prior to the Effective Date of the Merger, and
(v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Pure California in the same
manner as if Pure Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the DGCL and the
CGCL.
2.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1
Certificate of Incorporation. The Certificate of
Incorporation of Pure Delaware as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and
effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.2
Bylaws. The Bylaws of Pure Delaware 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.
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