Exhibit 3.9
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated this 4th, day of November 2002, pursuant to
Section 252 of the General Corporation Law of the State of Delaware, between
Dialog Group, Inc., a Delaware corporation and IMX Pharmaceuticals, Inc., a Utah
corporation.
WHEREAS, all of the constituent corporations desire to merge into a
single corporation for the sole purpose of reincorporating IMX Pharmaceuticals,
Inc. in Delaware;
NOW, THEREFORE, the corporations, parties to this Agreement, in
consideration of the mutual covenants, agreements and provisions hereinafter
contained, do hereby prescribe the terms and conditions of said merger and mode
of carrying the same into effect as follows:
FIRST: Dialog Group, Inc. hereby merges into itself IMX
Pharmaceuticals, Inc. and IMX Pharmaceuticals, Inc. shall be and hereby is
merged into Dialog Group, Inc., which shall be the surviving corporation.
SECOND: The Certificate of Incorporation of Dialog Group, Inc., a
Delaware corporation which is the surviving corporation, shall be amended as
follows:
Paragraph 4 is deleted and replaced by the following:
4. The total number of shares of stock which the corporation shall have the
authority to issue is 100,000,000 shares of Common Stock and 1,000,000 of
Preferred, all of which shall have a par value of $0.001. The Preferred may be
issued from time to time in one or more classes or series. The number of shares,
their stated value and dividend rate, if any, and their designations,
preferences, and relative, participating, optional, or other special rights and
any qualifications, limitations, or restrictions thereon shall be fixed by the
board of directors for each class or series in the resolutions providing for its
issuance..
The Corporation hereby creates and authorizes a series of Preferred Stock of
350,000 shares entitled Class B Convertible Preferred Stock ("Class B
Preferred") and that each share have the following preferences, rights,
qualifications, limitations and restrictions:
1. Each share of Class B Preferred Stock shall have a stated value of
$80.00.
2. The Class B Preferred Stock shall be convertible as follows:
(a) Number of Shares of Common Stock: One (1) share of Common
Stock shall be issued for every two ($2) dollars of stated
value of the Class B Preferred (the "Conversion Price").
(b) Method of Exercise: The conversion right may be exercised, in
whole or in part, by the surrender of the stock certificate or
stock certificates representing the Class B Preferred to be
converted at the principal office of the Company (or at any
other place as the Company may designate in a written notice
sent to the holder by first-class mail, postage prepaid, at
its address shown on the books of the Company) accompanied by
written notice of election to convert against delivery of that
number of whole shares of Common Stock as shall be computed in
accordance with section 3(a). Each Class B Preferred stock
certificate surrendered for conversion shall be endorsed by
its holder. In the event of any exercise of the conversion
right of the Class B Preferred granted herein, (i) stock
certificates for the shares of Common Stock purchased by
virtue of the exercise shall be delivered to the holder
forthwith, and (ii) unless the Class B Preferred has been
fully converted, a new Class B Preferred stock certificate,
representing the Class B Preferred not so converted, if any,
shall also be delivered to its holder forthwith. The stock
certificates for the shares of Common Stock so purchased shall
be dated the date of the surrender and the holder making the
surrender shall be deemed for all purposes to be the holder of
the shares of Common Stock so purchased as of the date of the
surrender.
(c) Commencement of Conversion Rights: The right to convert a
share of Class B Preferred shall begin on the earlier of (i)
October 1, 2002 or (ii) the effective date of a registration
statement under the Securities Act of 1933, as amended, for
the Common Stock into which the Class B Preferred may be
converted.
(d) Fractional Securities: No fractional shares of Common Stock
shall be issued in connection with any conversion of Class B
Preferred. In lieu of any fractional shares, the Company shall
make a cash payment therefore equal in amount to the
applicable fraction of the Conversion Price.
(e) Reservation of Shares: At all times that any Class B Preferred
is outstanding, the Company shall have authorized, and shall
have reserved for the purpose of issuance upon conversion or
exercise, a sufficient number of shares of Common Stock to
provide for the conversion into Common Stock of all Class B
Preferred then outstanding at the Conversion Price, as it may
be adjusted from time to time. Without limiting the generality
of the foregoing, if, at any time, the Conversion Price is
decreased, the number of shares of Common Stock authorized and
reserved for issuance upon the conversion of Class B Preferred
shall be proportionately increased.
3. Except as otherwise provided by law, each holder of Class B Preferred,
by virtue of its ownership thereof, shall be entitled to cast that
number of votes equal to the number of shares of Common Stock into
which that holders Class B Preferred is then convertible pursuant to
Section 3(a) on each matter submitted to the Company's shareholders for
voting. Each vote shall be cast together with those cast by the holders
of Common Stock and not as a separate class except as otherwise
provided by law. The Class B Preferred shall not have cumulative voting
rights.
4. The Class B Preferred Stock shall be callable, upon not more than
ninety (90) days or less than thirty (30) days notice, at its stated
value at any time after January 31, 2003. A holder of Class B Preferred
Stock shall have until the date set forth in the notice as the call
date to exercise his conversion rights. If less than all the
outstanding Class B Preferred Stock is to be called, the certificates
to be called shall be selected at random or called pro-rata as
determined by the Board of Directors.
If the Company shall be voluntarily or involuntarily liquidated, dissolved, or
wound up, at any time any Class B Preferred shall be outstanding, the holders of
the then outstanding Class B Preferred shall have a preference against the
property of the Company available for distribution to the holders of the
Corporation's other equity securities equal to the amount of $80.00 per share
(the "Preferential Amount"). In addition, the holders of the Class B Preferred
shall be entitled to receive a participating share of any further assets
available for distribution to holders of Common Stock, which participating share
shall be the same as that which the holders would have been entitled to receive
if, on the record date for determining the recipients of any distributions, the
holders were the holders of record of the number of shares of Common Stock into
which the outstanding shares of Class B Preferred were then convertible. If the
assets of the Company available for distribution to the holders of shares of the
Class B Preferred upon dissolution, liquidation, or winding up of the Company
shall be insufficient to pay in full all amounts to which the holders are
entitled pursuant to the immediately preceding portions of this paragraph, no
distribution shall be made on account of any shares of any other class or series
of capital stock of the Company ranking on a parity with or junior to the shares
of the Class B Preferred and any distribution to any other class of shares
ranking on a parity with the Class B Preferred shall be made ratably in
proportion to the full distributable amounts for which holders of all the parity
shares are respectively entitled upon the dissolution, liquidation, or winding
up
THIRD: The manner of converting the outstanding shares of the capital
stock of each of the constituent corporations into shares or other securities of
the surviving corporation shall be as follows:
(a) Each share of common stock of the surviving corporation, which
shall be issued and outstanding on the effective date of this Agreement, shall
be cancelled.
(b) Each share of common stock of the merged corporation which shall be
outstanding on the effective date of this Agreement shall have all rights in
respect thereto forthwith changed and converted into one share of the same class
of stock, common or preferred, of the surviving corporation.
(c) After the effective date of this Agreement, each holder of an
outstanding certificate representing shares of common or preferred stock of the
merged corporation shall surrender the same to the surviving corporation and
each such holder shall be entitled upon such surrender to receive the number of
shares of common or preferred stock of the surviving corporation on the basis
provided herein. Until so surrendered, the outstanding shares of stock of the
merged corporation to be converted into the stock of the surviving corporation
as provided herein may be treated by the surviving corporation for all corporate
purposes as evidencing the ownership of shares of the surviving corporation as
though said surrender and exchange had taken place.
FOURTH: The terms and conditions of the merger are as follows:
(The following are suggested clauses which should be changed, omitted or
amplified as the circumstances of the merger dictate)
(a) The by-laws of the merged corporation as they shall exist on the
effective date of this Agreement shall be and remain the by-laws of the
surviving corporation until the same shall be altered, amended and repealed as
therein provided.
(b) The directors and officers of the merged corporation assume the
same offices in the surviving corporation and shall continue in office until the
next annual meeting of stockholders and until their successors shall have been
elected and qualified.
(c) This merger shall become effective upon filing with the Secretary
of State of Delaware.
(d) Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of the merged corporation shall be
transferred to, vested in and devolve upon the surviving corporation without
further act or deed and all property, rights, and every other interest of the
surviving corporation and the merged corporation shall be as effectively the
property of the surviving corporation as they were of the surviving corporation
and the merged corporation respectively. The merged corporation hereby agrees
from time to time, as and when requested by the surviving corporation or by its
successors or assigns, to execute and deliver or cause to be executed and
delivered all such deeds and instruments and to take or cause to be taken such
further or other action as the surviving corporation may deem to be necessary or
desirable in order to vest in and confirm to the surviving corporation title to
and possession of any property of the merged corporation acquired or to be
acquired by reason of or as a result of the merger herein provided for and
otherwise to carry out the intent and purposes hereof and the proper officers
and directors of the merged corporation and the proper officers and directors of
the surviving corporation are fully authorized in the name of the merged
corporation or otherwise to take any and all such action.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolutions adopted by their respective
Boards of Directors have caused these presents to be executed by the President
of each party hereto as the respective act, deed and agreement of said
corporations on this 4th, day of November 2002.
Dialog Group, Inc
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
IMX Pharmaceuticals, Inc.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
