EXHIBIT 10.5
OMNICORDER TECHNOLOGIES, INC.
00-0 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxx 00000-0000
November __, 2003
To each Stockholder of OmniCorder Technologies, Inc.
Ladies and Gentlemen:
Reference is made to the Agreement of Purchase and Sale, dated as of
November __, 2003 (the "Purchase Agreement"), by and between OmniCorder
Technologies, Inc., a Delaware corporation ("OmniCorder"), and Promos, Inc., a
publicly-traded Colorado corporation ("Promos"), pursuant to which OmniCorder's
stockholders will receive shares of common stock, par value $.001 per share (the
"Common Stock"), of Promos in connection with the acquisition and assumption by
Promos of all of the assets and liabilities of OmniCorder (the "Reverse
Acquisition").
As previously communicated to you by OmniCorder, Promos hereby confirms
the following:
1. (a) Subject to the other provisions of this Section 1, Promos shall
use its best efforts to file with the U.S. Securities and Exchange Commission
(the "SEC"), within 60 days after the closing of the Reverse Acquisition, a
registration statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), covering all of the shares of Common
Stock received by you in the Reverse Acquisition (the "Registrable Shares").
Promos shall use its best efforts to have the Registration Statement declared
effective by the SEC as soon as possible and, in any event, within 180 days
after the closing of the Reverse Acquisition.
(b) In the event the registration effected by Promos pursuant to
this Section 1 relates to an underwritten offering of securities, your right to
registration pursuant to this Section 1 shall be conditioned upon your (i)
participation in such underwriting, (ii) inclusion of the Registrable Shares
therein and (iii) execution of all customary underwriting documents requested by
the underwriter with respect thereto (the "Underwriter").
(c) All expenses (other than underwriting discounts and commissions,
brokerage fees, applicable transfer taxes and fees and expenses of counsel for
the selling stockholders) incurred in connection with registrations, filings or
qualifications pursuant to this Section 1, including, without limitation, all
registration, filing and qualification fees, printers' and accounting fees and
fees and disbursements of counsel for Promos, shall be borne by Promos. In
addition, Promos will pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance obtained by Promos and the expenses and fees
for listing or authorizing for quotation the securities to be registered on each
securities exchange, market or automated quotation system on which any shares of
Common Stock are then listed or quoted.
(d) You and Promos will indemnify the other person against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or
alleged untrue statement) by the indemnifying party of a material fact contained
in any prospectus or other document (including any related registration
statement, notification or the like) incident to any registration of the type
described in this Section 1, or any omission (or alleged omission) by the
indemnifying person to state in any such document a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse such indemnified person for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action; provided that no person will be
eligible for indemnification hereunder to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission based upon written information furnished by such person for use in
connection with such registration.
(e) You shall furnish to Promos or the Underwriter, as applicable,
such information regarding yourself and the distribution proposed by you as
Promos may reasonably request in connection with any registration or offering
referred to in this Section 1. You shall cooperate as reasonably requested by
Promos in connection with the preparation of the registration statement with
respect to such registration, and for so long as Promos is obligated to file and
keep effective such registration statement, shall provide to Promos, in writing,
for use in the registration statement, all such information regarding yourself
and your plan of distribution of the Registrable Shares included in such
registration as may be reasonably necessary to enable Promos to prepare such
registration statement, to maintain the currency and effectiveness thereof and
otherwise to comply with all applicable requirements of law in connection
therewith.
2. Until the Registration Statement has become effective under the
Securities Act, each certificate representing the shares of Common Stock issued
and all certificates and instruments issued in transfer thereof, shall be
endorsed with the following restrictive legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN TAKEN
FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO THE DISTRIBUTION
THEREOF, AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE
SOLD, TRANSFERRED, ASSIGNED OR PLEDGED EXCEPT IF REGISTERED UNDER
APPLICABLE STATE BLUE SKY OR SECURITIES LAWS OR ANY EXEMPTIONS FROM
SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE."
Upon the effectiveness of the Registration Statement, Promos shall,
upon your request, issue to you a replacement certificate without such legend in
exchange for any such legended certificate.
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Promos confirms, by its execution hereof, that this letter has been
duly authorized by its Board of Directors.
OMNICORDER TECHNOLOGIES, INC.
(Operating initially as Promos, Inc.)
By:
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Name:
Title:
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