EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into by and between Promos, Inc., a Colorado corporation ("Promos"), and
OmniCorder Technologies, Inc., a Delaware corporation ("OmniCorder"), being
sometimes referred to herein individually as the "Constituent Corporation" and
collectively as the "Constituent Corporations."
R E C I T A L S:
A. Promos is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado. Promos has authorized capital
consisting of 60,000,000 shares, divided into 50,000,000 shares of common stock,
par value $.001 per share, and 10,000,000 shares of preferred stock, par value
$.01 per share. As of January 12, 2004 (said date being the record date for
determining the stockholders of Promos entitled to vote on the Merger
Agreement), 29,570,000 shares of the common stock were issued and outstanding.
As of the date of the execution hereof, no shares of Promos preferred stock were
outstanding.
B. OmniCorder is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. OmniCorder has authorized
capital consisting of 60,000,000 shares, divided into 50,000,000 shares of
common stock, par value $.00l per share, and 10,000,000 shares of preferred
stock, par value $.01 per share. As of the date of execution hereof, 1,000
shares of OmniCorder common stock were issued and outstanding, all of which were
held by Promos. As of the date of execution hereof, no shares of OmniCorder
preferred stock were outstanding.
C. The Board of Directors of Promos have determined that, for the purpose
of effecting the reincorporation of Promos in the State of Delaware, it is
advisable and in the best interest of Promos that Promos merge with and into
OmniCorder upon the terms and conditions set forth herein.
D. The respective Boards of Directors of the Constituent Corporations have
authorized and approved the merger of Promos with and into OmniCorder in
accordance with the provisions of Sections 368(a) (1) (F) of the Internal
Revenue Code of 1986, as amended (the "Code"), and Sections 0-000-000 et seq. of
the Colorado Business Corporation Act (the "CBCA") and Sections 251 et seq. of
the General Corporation Law of Delaware (the "DGCL"), upon the terms and
conditions set forth in this Merger Agreement (the "Merger") and have approved
this Merger Agreement and directed that it be executed by the undersigned
officers.
E. Holders of approximately 52% of the issued and outstanding common stock
of Promos approved the Merger and the Merger Agreement at a special meeting of
the shareholders of Promos held on February 17, 2004. The sole stockholder of
OmniCorder also approved the Merger and the Merger Agreement by consent in lieu
of a special meeting.
F. It is the intention of the Constituent Corporations that the Merger
shall be a tax-free reorganization pursuant to the applicable provisions of the
Code.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and for the purpose of stating the terms and
conditions of the Merger, the mode of effectuating the same, and such other
details and provisions as are deemed desirable, the parties hereto have agreed,
and do hereby agree, subject to the terms and conditions hereinafter set forth,
as follows:
ARTICLE I
TERMS OF MERGER
1.1 Merger. On the Effective Date of the Merger (as hereinafter defined),
in accordance with the provisions of Sections 0-000-000 et seq. of the CBCA,
Sections 251 et seq. of the DGCL and Section 368(a) (1) (F) of the Code, Promos
shall be merged with and into OmniCorder, which shall be sometimes referred to
herein as the "Surviving Corporation," upon the terms and conditions set forth
in the subsequent provisions of this Merger Agreement.
1.2 Approval of Stockholders. The stockholders of the Constituent
Corporations have duly approved the Merger Agreement and the transactions
contemplated herein.
1.3 Filings and Effectiveness. As soon as practicable following
satisfaction of all requirements imposed by the CBCA, DGCL and federal
securities laws, Promos and OmniCorder will cause (i) the Articles of Merger
along with any other required document to be filed with the Office of the
Secretary of State of Colorado pursuant to Sections 0-000-000 et seq. of the
CBCA and (ii) the Certificate of Merger along with any other required document
to be filed with the Secretary of State of the State of Delaware pursuant to
Sections 251 at seq. of the DGCL. The Merger shall become effective when the
last to occur of the following actions shall have been completed:
(a) An executed Certificate of Merger or an executed counterpart of
this Merger Agreement meeting the requirements of the DGCL shall have been
filed with the Secretary of State of the State of Delaware and said
Secretary of State shall have issued a Certificate of Merger; and
(b) An executed Articles of Merger or an executed counterpart of this
Merger Agreement meeting the requirements of the CBCA shall have been
accepted for recording by the secretary of State of the State of Colorado
and said Secretary of State shall have issued a Certificate of Merger.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.4 Effect of Merger. OmniCorder, as the Surviving Corporation in the
Merger, will continue to be governed by the laws of the State of Delaware and
the separate corporate existence of OmniCorder and all of its rights,
privileges, immunities and franchises, public or private, and all of its duties
and liabilities as a corporation organized under the DGCL will
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continue unaffected and unimpaired by the Merger. At the close of business
on the Effective Date of the Merger, the existence of Promos as a distinct
entity shall cease. At that time all rights, franchises and interests of
OmniCorder and Promos, respectively, in and to every type of property, whether
real, personal or mixed, and choices in action shall be transferred to and
vested in OmniCorder by virtue of the Merger without any deed or other transfer.
OmniCorder, without any order or other action on the part of any court or
otherwise, shall possess all and singular the rights, privileges, powers and
franchises, and shall be subject to all the restrictions, disabilities and
duties of Promos and OmniCorder, and all property, whether real, personal or
mixed, of Promos and OmniCorder, and all debts due to Promos or OmniCorder on
whatever account, and all other things in action or belonging to each of said
corporations, shall be vested in OmniCorder. All property, rights, privileges,
powers and franchises, and all and every other interest of Promos or OmniCorder
as of the Effective Date of the Merger, including, but not limited to, all
patents, trademarks, licenses, registrations, and all other intellectual
properties, shall thereafter be the property of OmniCorder to the same extent
and effect as such was of the respective Constituent Corporations prior to the
Effective Date of the Merger, and the title to any real estate vested by deed or
otherwise in Promos and OmniCorder shall not revert or be in any way impaired by
reason of the Merger; provided, however, that all rights of creditors and all
liens upon any property of Promos or OmniCorder shall thenceforth attach to
OmniCorder and may be enforced against it to the same extent as if said debts,
liabilities, and duties had been incurred or contracted by OmniCorder. Neither
the rights of creditors nor any liens or security interests upon the property of
either of the Constituent Corporations shall be impaired by the Merger.
OmniCorder shall carry on business with the assets of Promos and OmniCorder. The
established offices and facilities of OmniCorder and Promos immediately prior to
the Merger shall become the established offices and facilities of OmniCorder.
All corporate acts, plans, policies, resolutions, approvals and
authorizations of the stockholders, Board of Directors, committees elected or
appointed by the Board of Directors, officers and agents of Promos, which were
valid and effective immediately prior to the Merger shall be taken for all
purposes as the acts, plans, policies, resolutions, approvals and authorizations
of the Surviving Corporation and shall be as effective and binding thereon as
the same were with respect to Promos. The employees of Promos shall become the
employees of the Surviving Corporation and continue to be entitled to the same
rights and benefits which they enjoyed as employees of Promos.
1.5 Disposition and Conversion of Shares. The mode of carrying the Merger
into effect and the manner and the disposition of the shares of Promos and
OmniCorder shall be as follows:
(a) OmniCorder Shares. Each share of common stock, par value $.001 per
share, of OmniCorder issued and outstanding immediately prior to the
Effective Date of the Merger shall, by virtue of the Merger and without any
action by OmniCorder, the holder of such shares or by any other person, be
cancelled and returned to the status of authorized but unissued shares, all
rights in respect thereof shall cease to exist and no shares of OmniCorder
common stock or other securities of the Surviving Corporation shall be
issuable with respect thereto.
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(b) Promos Non-Dissenting Shares. Each share of common stock, par
value $.001 per share, of Promos issued and outstanding immediately prior
to the Effective Date of the Merger other than the shares, if any, of
Promos for which appraisal rights shall be perfected under Sections
0-000-000 through 0-000-000 of the CBCA (the "Dissenting Shares") shall, by
virtue of the Merger and without any action by Promos, the holder of such
shares or any other person, be converted into and exchanged for one fully
paid and nonassessable share of common stock, par value $.001 per share, of
the Surviving Corporation.
(c) Promos Dissenting Shares. The holders of Dissenting Shares of
Promos common stock who have complied with all requirements for perfecting
the rights of appraisal of stockholders set forth in Sections 0-000-000
through 0-000-000 of the CBCA with respect to their Dissenting Shares of
Promos common stock shall be entitled to their rights under the CBCA.
(d) Exchange of Certificates. Each outstanding certificate theretofore
representing shares of Promos common stock that are not Dissenting Shares
(the "Non-Dissenting Shares") shall be deemed for all purposes to represent
the number of whole shares of the OmniCorder common stock into which such
Non-Dissenting Shares of Promos common stock were converted in the Merger
and the holder thereof shall not be required to surrender such certificate
for a certificate issued by OmniCorder. However, after the Effective Date
of the Merger, each holder of an outstanding certificate representing
Non-Dissenting Shares of Promos common stock may, at such stockholder's
option and sole discretion, surrender the same for cancellation to
Corporate Stock Transfer, Inc., as the sole stock transfer and registrar of
the Promos common stock and as exchange agent therefor (the "Exchange
Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of
the OmniCorder common stock into which the surrendered shares were
converted as herein provided.
The registered owner on the books and records of OmniCorder or the Exchange
Agent of any such outstanding certificate representing Non-Dissenting Shares of
Promos common stock shall, until such certificate shall have been surrendered
for transfer or conversion or otherwise accounted for to the Surviving
Corporation or the Exchange Agent, have and be entitled to exercise any voting
and other rights with respect to and to receive dividends and other
distributions upon the shares of common stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing common stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Promos so converted and
given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of OmniCorder stock is to be issued in a name
other than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate so
surrendered shall be properly endorsed and otherwise in
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proper form for transfer, that such transfer otherwise be proper and that
the person requesting such transfer pay to the Exchange Agent any transfer or
other taxes payable by reason of issuance of such new certificate in a name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of OmniCorder that such tax has been paid or is
not payable.
(e) Validity of OmniCorder Common Stock. At the Effective Date of the
Merger, all shares of OmniCorder common stock into which the Non-Dissenting
Shares of Promos common stock are to be converted pursuant to the Merger
shall be validly issued, fully paid and nonassessable and shall be issued
in full satisfaction of all rights pertaining to the corresponding shares
of Promos common stock.
1.6 Certificate of Incorporation of Surviving Corporation. The Certificate
of Incorporation of OmniCorder 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.
1.7 Bylaws of Surviving Corporation. The Bylaws of OmniCorder 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 altered,
amended or repealed as provided in the Bylaws or as provided by applicable law.
1.8 Directors and Officers of Surviving Corporation. The directors and
officers of Promos as of the Effective Date of the Merger shall be and become
the directors and officers of the Surviving Corporation, until their successors
shall be duly elected and qualified or until their sooner death, resignation or
removal.
1.9 Accounting Matters. The assets and liabilities of the Constituent
Corporations, as of the Effective Date of the Merger, shall be taken upon the
books of the Surviving Corporation at the amounts at which they shall be carried
at that time on the books of the respective Constituent Corporations. The amount
of the capital surplus and earned surplus accounts of the Surviving Corporation
after the Merger shall be determined by the Board of Directors of the Surviving
Corporation in accordance with the laws of the State of Delaware and generally
accepted accounting principles.
ARTICLE II
GENERAL PROVISIONS
2.1 Covenants of OmniCorder. OmniCorder covenants and agrees that on or
before the Effective Date of the Merger, it will qualify to do business as a
foreign corporation in the State of New York and in connection therewith take
such other action as may be required by the New York Business Corporation Law.
2.2 Binding Agreement. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns.
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2.3 Amendments. The Board of Directors of Promos and OmniCorder may amend
this Merger Agreement at any time prior to the filing of this Merger Agreement
(or a certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Merger Agreement by the stockholders of either Promos or OmniCorder shall not:
(i) alter or change the amount or kind of shares, securities, cash, property
and/or rights to be received in exchange for or on conversion of all or any of
the shares of any class or series thereof of Promos or OmniCorder; (ii) alter or
change any term of the Certificate of Incorporation of the Surviving Corporation
to be effected by the Merger; or (iii) alter or change any of the terms and
conditions of this Merger Agreement if such alteration or change would adversely
affect the holders of any class or series of capital stock of either Promos or
OmniCorder.
2.4 Further Assurances. From time to time, as and when required by
OmniCorder or by its successors or assigns, there shall be executed and
delivered on behalf of Promos such deeds and other instruments, and there shall
be taken or caused to be taken by Promos such further and other actions, as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by OmniCorder the title to and possession of all the
property, rights, privileges, powers, franchises, assets, immunities and
authority of Promos and otherwise to carry out the purposes of this Merger
Agreement. The officers and directors of OmniCorder are fully authorized in the
name and on behalf of Promos or otherwise to take any and all such action and to
execute and deliver any and all such deeds or other instruments.
2.5 Abandonment. At any time before the Effective Date of the Merger, this
Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Promos or OmniCorder, or
by both, by the adoption of appropriate resolutions and written notification
thereof to the other party to the Merger, notwithstanding the approval of this
Merger Agreement by the stockholders of Promos or OmniCorder, or by both. In the
event of the termination of this Merger Agreement and the abandonment of the
Merger pursuant to the provisions of this Section, this Merger Agreement shall
become void and have no effect, without any liability on the part of either of
the Constituent Corporations or their respective officers, directors or
shareholders in respect thereof.
2.6 Governing Law. This Merger Agreement shall be construed, interpreted
and enforced in accordance with and governed by the laws of the State of
Delaware and, so far as applicable, the merger provisions of the Colorado
Business Corporation Act.
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IN WITNESS THEREOF, each of the undersigned corporations has caused this
Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the ___ day of February, 2004.
Promos: OmniCorder:
Promos, Inc. OmniCorder Technologies, Inc.
By: By:
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Xxxx X. Xxxxx Xxxx X. Xxxxx
President and Chief President and Chief Executive
Executive Officer Officer
