EXHIBIT 2.1
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement"), is made and
entered into as of this 19th day of December 2003, by and between OmniCorder
Technologies, Incorporated, a Delaware corporation ("OmniCorder"), and Promos,
Inc., a Colorado corporation ("Promos").
W I T N E S S E T H :
WHEREAS, OmniCorder is engaged in the business of acquiring,
developing and commercializing advanced imaging technology for the diagnosis and
management of a large variety of diseases, including cancer and vascular disease
(the "Business");
WHEREAS, OmniCorder desires to sell to Promos, and Promos desires to
buy from OmniCorder, all of the assets and properties of the Business in
exchange for shares of common stock, par value $.001 per share, of Promos (the
"Promos Common Stock"), and the assumption by Promos of all of the liabilities
of OmniCorder, all as hereinafter provided; and
WHEREAS, simultaneously with the Closing of the transactions
contemplated by this Agreement (such transactions collectively, the
"Acquisition"), Promos (as it will exist as of the Closing of the Acquisition)
is selling up to $15,000,000 in shares of Promos Common Stock in a private
offering to accredited investors pursuant to the terms of a Confidential Private
Placement Memorandum, dated October 2003, which was offered and distributed by
OmniCorder (as amended and supplemented, the "Offering Memorandum"), for the
purpose of expanding the business of Promos following the closing of the
Acquisition (the "Offering").
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements, and upon the terms and subject to the
conditions hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I
TERMS OF PURCHASE AND SALE
1.01. Purchase and Sale. On the Closing Date (as defined in Section
1.02), on the terms and subject to the conditions set forth in this Agreement,
OmniCorder shall sell, convey, transfer, assign and deliver to Promos, and
Promos shall purchase and acquire from OmniCorder, all of OmniCorder's right,
title and interest in and to the assets, properties and Business of OmniCorder,
whether now owned or hereafter acquired by OmniCorder prior to the Closing Date,
and whether tangible or intangible, which are used in connection with the
conduct of the Business (collectively, the "Assets"), including, without
limitation, the following:
(a) the leaseholds described in the disclosure schedule
delivered pursuant hereto (the "Disclosure Schedule");
(b) all machinery, equipment, electronics, components, vehicles,
office furniture, tools and other tangible property owned by OmniCorder and used
in connection with the conduct of the Business;
(c) all raw materials and inventories, including inventories of
work in process and inventories held by customers on a consignment basis, and
supplies, used in connection with the conduct of the Business;
(d) all accounts receivable of OmniCorder;
(e) subject to Section 4.01, all of OmniCorder's rights under
the Commitments (as defined in Section 2.06), pertaining to the conduct of the
Business, including, but not limited to, any contracts for the purchase of raw
materials, contracts for services and supplies, permits, licenses, clearances
and approvals to operate the Assets and any options to purchase or lease real or
personal property;
(f) all sales and promotional literature, and all books,
records, files and data (including customer and supplier lists), or copies
thereof, pertaining to the conduct of the Business, including, without
limitation, all personnel records and files (collectively, the "Books and
Records");
(g) all trade names, trademarks, trademark applications,
copyrights, copyright applications, patents, patent applications, intellectual
property and know-how used in connection with the conduct of the Business,
including, without limitation, OmniCorder's right, title and interest in and to
the name "OmniCorder Technologies";
(h) the Business of OmniCorder as a going concern and goodwill,
if any; and
(i) all cash, cash deposits, other cash equivalent investments,
cash refunds, insurance policies and security bonds or deposits.
1.02. The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall take place at the New York offices of Xxxxxxxxx Xxxxxxx,
LLP, counsel to OmniCorder, commencing at 9:30 a.m. on December 19, 2003, or at
such other time and/or place and/or on such other date as the parties may
mutually agree (the "Closing Date").
1.03. Purchase Price and Payment. The aggregate purchase price to be
paid by Promos to OmniCorder for the Assets (the "Purchase Price") shall be paid
at the Closing by the issuance to OmniCorder of one certificate evidencing
Thirteen Million Seven Hundred Seventy-Three Thousand Seven Hundred (13,773,700)
shares of Promos Common Stock (the "Consideration Shares"), which shares shall
represent, together with the 7,764,700 shares of Promos Common Stock sold to
OmniCorder as described in Section 8.05 hereof, 95.0% of the outstanding shares
of Promos Common Stock following the closing of the Acquisition, but before
giving effect to the Offering and equity-based transaction fees.
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1.04. Payment of Taxes and Other Charges. Promos shall pay, at the
Closing or, if due thereafter promptly when due, all transfer taxes, sales
taxes, stamp taxes, and any other taxes payable in connection with the
transactions contemplated hereby.
1.05. Instruments of Transfer. On the Closing Date, OmniCorder shall
deliver to Promos duly executed instruments of transfer and assignment of the
Assets sufficient to vest in Promos the interests in the Assets being conveyed
in accordance with the terms of this Agreement.
1.06. Assumption. Promos understands and agrees that, from and after
the Closing, neither OmniCorder nor any person or entity that directly or
indirectly controls, is controlled by, or is under common control with,
OmniCorder (such party, an "Affiliate") shall have any liability or
responsibility for any liability or obligation of or arising out of or relating
to the Assets (including any Commitments included in the Assets) or the Business
of whatever kind or nature, whether contingent or absolute, whether arising
prior to or on or after, and whether determined or indeterminable on, the
Closing Date, and whether or not specifically referred to in this Agreement
(such liabilities and obligations, the "Liabilities"). Accordingly, Promos
agrees that, effective upon the Closing, Promos shall assume and shall
thereafter pay, perform and discharge and, effective as of the Closing, Promos
does hereby assume the Liabilities, and further agrees that it shall indemnify
OmniCorder and its Affiliates and hold each of them harmless against any
liability, loss, damage, claim, cost or expense (collectively, a "Loss")
incurred or suffered by any of them arising out of (i) any of the Liabilities or
(ii) any breach by Promos of, or failure by Promos to comply with, any of the
provisions of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OMNICORDER
OmniCorder represents and warrants to Promos as follows:
2.01. Organization, Standing, etc. OmniCorder is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby. OmniCorder has no subsidiaries or direct or indirect
interest (by way of stock ownership or otherwise) in any firm, corporation,
limited liability company, partnership, association or business.
2.02. Financial Statements. Included in the Disclosure Schedule are
(a) OmniCorder's audited balance sheet (the "Balance Sheet") as of December 31,
2002 (the "Balance Sheet Date") and 2001, and the audited statements of
operations, stockholders' equity and cash flows for the years ended December 31,
2002 and 2001, together with the related independent auditors' reports of Xxxxxx
& Kliegman LLP, and (b) OmniCorder's unaudited balance sheets for the nine
months ended September 30, 2003 and 2002, and the unaudited statements of
operations, stockholders' equity and cash flows for the nine months ended
September 30, 2003 and 2002. Such financial statements (i) are in accordance
with the books and records of OmniCorder, (ii) present fairly in all material
respects the financial condition of OmniCorder at the dates therein specified
and the results of its operations and changes in financial position for the
periods therein specified and (iii) have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a basis consistent
with prior accounting periods.
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2.03. Absence of Certain Changes or Events. Except as set forth in the
Disclosure Schedule, since the Balance Sheet Date, OmniCorder has not (a)
suffered any damage, destruction or casualty loss to its physical properties
materially and adversely affecting the business or financial condition of
OmniCorder or the Business; (b) incurred or discharged any obligation or
liability except in the ordinary course of business and except obligations or
liabilities that are not individually or in the aggregate material to the
business or financial condition of OmniCorder or the Business; or (c) entered
into any transaction not in the ordinary course of its business except as
permitted in or contemplated by other sections of this Agreement.
2.04. Physical Properties. OmniCorder has good title to all of the
assets and properties which it purports to own (including those reflected on the
Balance Sheet, except for assets and properties sold, consumed or otherwise
disposed of in the ordinary course of business since the Balance Sheet Date) and
which are material to the business or financial condition of OmniCorder or the
Business, free and clear of all liens, security interests or other encumbrances
("Encumbrances"), except (a) as set forth in the Disclosure Schedule, (b) liens
of current taxes not yet due or being contested in good faith by appropriate
proceedings, and (c) Encumbrances which individually or in the aggregate do not
have a material adverse effect on the business or financial condition of the
Business.
2.05. Patents, Trademarks. Etc. The Disclosure Schedule sets forth a
list of all United States and foreign patents, trademarks, trade names,
copyrights, and applications therefor used by OmniCorder exclusively in and
material to the conduct of the Business (the "Patent and Trademark Rights").
Except as disclosed in the Disclosure Schedule, (a) OmniCorder owns or possesses
adequate licenses or other valid rights to use all Patent and Trademark Rights;
and (b) to OmniCorder's knowledge, the conduct of the Business as now being
conducted does not conflict with any valid patents, trademarks, trade names or
copyrights of others in any way which has a material adverse effect on the
business or financial condition of OmniCorder or the Business.
2.06. Commitments. The Disclosure Schedule contains a list of each
contract, agreement or understanding (including each governmental license,
permit or other governmental authorization) whether written or oral (including
any and all amendments thereto) to which Seller is a party, or by which it may
be bound, which relates to the ownership of the Assets or the conduct of the
Business (collectively, the "Commitments") and which is material to the business
or financial condition of OmniCorder. Except as disclosed in the Disclosure
Schedule, to OmniCorder's knowledge, OmniCorder is not in default under any of
the Commitments, which default would have a material adverse effect on the
business or financial condition of OmniCorder.
2.07. Litigation. Except as set forth in the Disclosure Schedule,
there is no action or proceeding in any court or before any governmental
authority ("Litigation") pending (i) to OmniCorder's knowledge, against
OmniCorder in connection with the ownership of the Assets
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or the conduct of the Business, with respect to which there is a
reasonable likelihood of a determination which would have a material adverse
effect on the business or financial condition of OmniCorder, or (ii) which seeks
to enjoin or obtain damages in respect of the consummation of the transactions
contemplated hereby.
2.08. Compliance with Laws. Except as set forth in the Disclosure
Schedule, to OmniCorder's knowledge, OmniCorder is in compliance with all laws,
rules, regulations and orders applicable to the Business (including, without
limitation, those relating to medical devices, environmental protection,
occupational safety and health and equal opportunity employment practices)
except where the failure to comply therewith does not have a material adverse
effect on the business or financial condition of OmniCorder.
2.09. Corporate Power and Authority; Effect of Agreement. The
execution, delivery and performance by OmniCorder of this Agreement and the
consummation by OmniCorder of the Acquisition have been duly authorized by all
necessary corporate action on the part of OmniCorder. This Agreement has been
duly and validly executed and delivered by OmniCorder and constitutes the valid
and binding obligation of OmniCorder, enforceable in accordance with its terms,
subject to (a) applicable bankruptcy, insolvency or other similar laws relating
to creditors' rights generally, and (b) general principles of equity. The
execution, delivery and performance by OmniCorder of this Agreement and the
consummation by OmniCorder of the transactions contemplated hereby will not,
with or without the giving of notice or the lapse of time, or both, subject to
obtaining any required consents, approvals, authorizations, exemptions or
waivers, (x) violate any provision of law, rule or regulation to which
OmniCorder is subject, (y) violate any order, judgment or decree applicable to
OmniCorder, or (z) conflict with, or result in a breach or default under, any
term or condition of the Certificate of Incorporation or the By-laws of
OmniCorder or any agreement or other instrument to which OmniCorder is a party
or by which OmniCorder may be bound; except in each case, for violations,
conflicts, breaches or defaults which in the aggregate would not materially
hinder or impair the consummation of the transactions contemplated hereby.
2.10. Employee Benefit Plans. The Disclosure Schedule lists all: (i)
"employee benefit plans" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), maintained or contributed to
by OmniCorder and covering employees of OmniCorder, including (i) any such plans
that are "employee welfare benefit plans" as defined in Section 3(1) of ERISA
and (ii) any such plans that are "employee pension benefit plans" as defined in
Section 3(2) of ERISA (collectively, the "OmniCorder Benefit Plans"); and (ii)
life and health insurance, hospitalization, savings, bonus, deferred
compensation, incentive compensation, holiday, vacation, severance pay, sick
pay, sick leave, disability, tuition refund, service award, company car,
scholarship, relocation, patent award, fringe benefit and other employee benefit
plans, contracts (other than individual employment, consultancy or severance
contracts), policies or practices of OmniCorder providing employee or executive
compensation or benefits to its employees, other than the OmniCorder Benefit
Plans (collectively, the "Benefit Arrangements"). Each OmniCorder Benefit Plan
and Benefit Arrangement has been maintained and administered in all material
respects in accordance with applicable law.
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2.11. Consents. Except as set forth in the Disclosure Schedule or
elsewhere herein, no consent, approval or authorization of, or exemption by, or
filing with, any governmental or regulatory authority is required in connection
with the execution, delivery and performance by OmniCorder of this Agreement or
the taking of any other action contemplated hereby, excluding, however,
consents, approvals, authorizations, exemptions and filings, if any, which
Promos is required to obtain or make.
2.12 Broker's and Finder's Fees. No person or entity has, or as a
result of the transactions contemplated herein will have, any right or valid
claim against OmniCorder or Promos for any commission, fee or other compensation
as a finder or broker, or in any similar capacity, except as disclosed in the
Disclosure Schedule.
2.13. Disclaimer. OMNICORDER MAKES NO WARRANTY, EXPRESS OR IMPLIED,
EXCEPT AS SET FORTH IN THIS ARTICLE II. IN ANY EVENT, OMNICORDER MAKES NO
WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
QUALITY, AS TO THE ASSETS AND THE BUSINESS, OR ANY PART THEREOF, OR AS TO THE
CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER
LATENT OR PATENT, IT BEING UNDERSTOOD THAT THE ASSETS ARE TO BE CONVEYED
HEREUNDER "AS IS WHERE IS" ON THE CLOSING DATE, AND IN THEIR THEN PRESENT
CONDITION, AND PROMOS SHALL RELY UPON ITS OWN EXAMINATION THEREOF.
2.14. Investment Representations. OmniCorder hereby represents and
warrants that it has sufficient knowledge and experience in financial and
business matters and that it has obtained sufficient information from Promos,
including Promos' most recent filings with the U.S. Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), so as to be capable of evaluating the merits and
risks of its investment in the Consideration Shares. OmniCorder further
represents and warrants that it is acquiring the Consideration Shares for
investment purposes, and not with a view to any public resale or other
distribution thereof in violation of the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state; provided, however, that
the provisions of this Section 2.14 shall not prejudice OmniCorder's right to
distribute the Consideration Shares to OmniCorder stockholders in connection
with the dissolution and complete liquidation of OmniCorder following the
Closing, as more fully described in Section 4.07 hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PROMOS
Promos hereby represents and warrants to OmniCorder as follows:
3.01. Organization, Standing, Etc. Promos is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado and has the requisite corporate power and authority to carry on its
business as it is now being conducted, and to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
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3.02. Corporate Power and Authority; Effect of Agreement. The
execution, delivery and performance by Promos of this Agreement and the
consummation by Promos of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Promos. This
Agreement has been duly and validly executed and delivered by Promos and
constitutes the valid and binding obligation of Promos, enforceable in
accordance with its terms, subject to (a) applicable bankruptcy, insolvency or
other similar laws relating to creditors' rights generally, and (b) general
principles of equity. The execution, delivery and performance by Promos of this
Agreement and the consummation by Promos of the transactions contemplated hereby
will not, with or without the giving of notice or the lapse of time, or both,
subject to obtaining any required consents, approvals, authorizations,
exemptions or waivers, (x) violate any provision of law, rule or regulation to
which Promos is subject, (y) violate any order, judgment or decree applicable to
Promos or (z) conflict with, or result in a breach or default under, any term or
condition of the Certificate of Incorporation, the By-laws or other similar
charter documents of Promos, or any agreement or other instrument to which
Promos or any of its subsidiaries is a party or by which any of them may be
bound; except, in each case, for violations, conflicts, breaches or defaults
which in the aggregate would not materially hinder or impair the consummation of
the transactions contemplated hereby.
3.03. Consents. No consent, approval or authorization of, or exemption
by, or filing with, any governmental or regulatory authority is required in
connection with the execution, delivery and performance by Promos of this
Agreement or the taking of any other action contemplated hereby, excluding,
however, consents, approvals, authorizations, exemptions, waivers and filings,
if any, which OmniCorder is required to obtain or make.
3.04. Litigation. There is no Litigation pending (i) to Promos'
knowledge, against Promos or any of its subsidiaries with respect to which there
is a reasonable likelihood of a determination which would have a material
adverse effect on the ability of Promos to perform its obligations under this
Agreement, or (ii) which seeks to enjoin or obtain damages in respect of the
consummation of the transactions contemplated hereby.
3.05. Capitalization of Promos. The authorized capital stock of Promos
consists of (a) 50,000,000 shares of Promos Common Stock, of which 10,033,600
shares of Promos Common Stock are issued and outstanding on the date hereof,
prior to taking into consideration the issuance of Promos Common Stock in the
Offering, and the sale to OmniCorder of 7,764,700 shares of Promos Common Stock
and redemption and cancellation of 1,135,300 shares of Promos Common Stock as
described in Section 8.05 hereof, and (b) 10,000,000 shares of preferred stock,
par value $.01 per share, of which no shares are issued and outstanding on the
date hereof. Except as disclosed in the Disclosure Schedule, Promos has no
outstanding options, rights or commitments to issue shares of Promos Common
Stock or any other equity security of Promos, and there are no outstanding
securities convertible or exercisable into or exchangeable for shares of Promos
Common Stock or other any equity security of Promos. To the best knowledge of
Promos, there is no voting trust, agreement or arrangement among any of the
beneficial holders of Promos Common Stock affecting the nomination or election
of directors or the exercise of the voting rights of Promos Common Stock. All
outstanding shares of the capital stock of Promos are validly issued and
outstanding, fully paid and nonassessable, and none of such shares have been
issued in violation of the preemptive rights of any person.
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3.06. Validity of Shares. The Consideration Shares to be issued at the
Closing pursuant to Section 1.03 hereof, when issued and delivered in accordance
with the terms hereof, shall be duly and validly issued, fully paid and
nonassessable. Based in part on the representations and warranties of OmniCorder
as contemplated by Article 2 hereof, and assuming the accuracy thereof, the
issuance of the Consideration Shares at the Closing of the Acquisition pursuant
to Section 1.03 will be exempt from the registration and prospectus delivery
requirements of the Securities Act and from the qualification or registration
requirements of any applicable state blue sky or securities laws.
3.07. SEC Reporting and Compliance. (a) Promos filed a registration
statement on Form 10-SB under the Exchange Act, which became effective on
November 30, 1999. Since that date, Promos has filed with the Commission all
reports required to be filed pursuant to the Exchange Act. Promos has not filed
with the Commission a certificate on Form 15 pursuant to Rule 12h-3 of the
Exchange Act.
(b) Promos has delivered to OmniCorder true and complete copies
of the registration statements, information statements and other reports
(collectively, the "Promos SEC Documents") filed by Promos with the Commission.
To the best of Promos' knowledge, none of the Promos SEC Documents, as of their
respective dates, contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements contained
therein not misleading.
(c) Except as set forth in the Disclosure Schedule, Promos has
not filed, and nothing has occurred with respect to which Promos would be
required to file, any current report on Form 8-K, since September 30, 2003.
Prior to and until the Closing, Promos will provide to OmniCorder copies of any
and all amendments or supplements to Promos SEC Documents filed with the
Commission since September 30, 2003 and all subsequent registration statements
and reports filed by Promos subsequent to the filing of Promos SEC Documents
with the Commission and any and all subsequent reports or notices filed by
Promos with the Commission or delivered to the stockholders of Promos.
(d) Promos is not an investment company within the meaning of
Section 3 of the Investment Company Act.
(e) The shares of Promos Common Stock are quoted on the
Over-the-Counter (OTC) Bulletin Board under the symbol "PMOS.OB," and, to the
best of Promos' knowledge, Promos is in compliance in all material respects with
all rules and regulations of the OTC Bulletin Board applicable to it and Promos
Common Stock.
(f) Between the date hereof and the Closing Date, Promos shall
continue to satisfy the filing requirements of the Exchange Act and all other
requirements of applicable securities laws.
(g) To the best knowledge of Promos, Promos has otherwise
complied with the Securities Act, Exchange Act and all other applicable federal
and state securities laws.
3.08. Conduct of Business Following the Closing. It is the intention
and expectation of Promos, following the Closing, to continue at least one
significant historic
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business line of OmniCorder, or to use at least a significant portion of
OmniCorder's historic business assets in a business, in each case within the
meaning of Treasury Regulation Section 1.368-1(d).
3.09. No General Solicitation. In issuing the shares of Promos Common
Stock hereunder, neither Promos nor anyone acting on its behalf has offered to
sell the shares of Promos Common stock by any form of general solicitation or
advertising.
ARTICLE IV
COVENANTS OF OMNICORDER
OmniCorder hereby covenants and agrees with Promos as follows:
4.01. Cooperation and Assignments. OmniCorder will use its best
efforts, and will cooperate with Promos, to secure all necessary consents,
approvals, authorizations, exemptions and waivers from third parties as shall be
required in order to enable OmniCorder to effect the transactions contemplated
hereby and will otherwise use its best efforts to cause the consummation of such
transactions in accordance with the terms and conditions hereof.
Notwithstanding anything herein to the contrary, to the extent the
assignment of any right to be assigned to Promos pursuant to the provisions
hereof shall require the consent of any other party, this Agreement shall not
constitute a breach thereof or create rights in others not desired by Promos. If
any such consent is not obtained, OmniCorder shall, at Promos' expense,
cooperate with Promos in any reasonable arrangement designed to provide for
Promos the benefit of any such right, including enforcement of any and all
rights of OmniCorder against the other party to any Commitment arising out of
the breach or cancellation thereof by such party or otherwise.
4.02. Conduct of Business. Except as may be otherwise contemplated by
this Agreement or required by any of the documents listed in the Disclosure
Schedule or except as Promos may otherwise consent to in writing (which consent
shall not be unreasonably withheld), between the date hereof and the Closing
Date, OmniCorder will (i) in all material respects, operate the Business only in
the ordinary course; (ii) use its best efforts to preserve the business
organization of the Business intact; (iii) maintain its properties, machinery
and equipment in sufficient operating condition and repair to enable the
Business to operate in all material respects in the manner in which it was
operated during the twelve (12) month period immediately prior to the date
hereof, except for maintenance required by reason of fire, flood or other acts
of God; (iv) continue all material existing policies of insurance (or comparable
insurance) of or relating to the Business in full force and effect; (v) use its
best efforts to keep available the services of its present officers, employees
and agents (as a group); and (vi) use its best efforts to preserve the
Business's relationships with its material lenders, suppliers, customers,
licensors and licensees and others having material business dealings with it
such that its business will not be substantially impaired.
4.03. Access. Between the date hereof and the Closing, OmniCorder
shall provide Promos with such information as Promos may from time to time
reasonably request with
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respect to OmniCorder and the transactions contemplated by this Agreement, and
shall provide Promos and its representatives reasonable access during regular
business hours and upon reasonable notice to the Books and Records and the
properties of OmniCorder, as Promos may from time to time reasonably request;
provided that OmniCorder shall not be obligated to provide Promos with any
information relating to trade secrets. Any disclosure whatsoever to Promos shall
not constitute an enlargement of or additional warranties or representations of
OmniCorder beyond those specifically set forth in this Agreement.
4.04. Right of Endorsement. From and after the Closing Date, Promos
shall have the right and authority to endorse, without recourse, the name of
OmniCorder on any check or any other evidence of indebtedness received by Promos
and to which it is entitled on account of any receivable or other Asset
transferred by OmniCorder pursuant hereto, and OmniCorder shall deliver to
Promos at the Closing documents sufficient to permit Promos to deposit such
checks or other evidences of indebtedness in bank accounts in the name of
Promos.
4.05. Accounts Receivable. OmniCorder shall remit in cash to Promos,
promptly upon the receipt of the cash, the proceeds of all checks and other
payments for accounts receivable purchased by Promos under this Agreement and
coming into the possession of OmniCorder.
4.06. Dissolution of OmniCorder and Distribution of Promos Common
Stock. It is the intention and expectation of the parties hereto that the
Acquisition will meet the requirements for qualifying as a "reorganization" of
OmniCorder within the meaning of Section 368(a)(1)(C) of the Internal Revenue
Code of 1986, as amended (the "Code"), and that this Agreement constitutes a
"plan of reorganization." As soon as practicable following the Closing,
OmniCorder shall take all required legal actions to dissolve and liquidate the
remaining business and affairs of OmniCorder and effect the distribution of the
shares of Promos Common Stock to be issued pursuant to Section 1.03 hereof to
OmniCorder's stockholders on a pro rata basis. Promos shall facilitate such
distribution by taking all reasonable and necessary steps required by Promos'
transfer agent to divide the shares of Promos Common Stock to be issued under
and in connection with this Agreement and effect the pro rata distribution
thereof to OmniCorder's stockholders following the dissolution and complete
liquidation of OmniCorder.
4.07. Further Assurances. At any time or from time to time after the
Closing Date, OmniCorder shall, at the request of Promos and at OmniCorder's
expense, execute and deliver any further instruments or documents and take all
such further action as Promos may reasonably request in order to evidence the
consummation of the transactions contemplated hereby.
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ARTICLE V
COVENANTS OF PROMOS
Promos hereby covenants and agrees with OmniCorder as follows:
5.01. Cooperation and Assumption. Promos will use its best efforts,
and will cooperate with OmniCorder, to secure all necessary consents, approvals,
authorizations, exemptions and waivers from third parties as shall be required
in order to enable Promos to effect the transactions contemplated hereby, and
will otherwise use its best efforts to cause the consummation of such
transactions in accordance with the terms and conditions hereof.
5.02. Books and Records; Personnel. For a period of seven (7) years
from the Closing
Date:
(a) Promos shall neither dispose of nor destroy any of the Books
and Records without first offering to turn over possession thereof to OmniCorder
by written notice to OmniCorder at least thirty days prior to the proposed date
of such disposition or destruction.
(b) Promos shall allow OmniCorder and its agents access to all
Books and Records during normal working hours at Promos' principal places of
business or at any location where any Books and Records are stored, and
OmniCorder shall have the right, at its own expense, to make copies of any Books
and Records; provided, however, that any such access or copying shall be had or
done in such a manner so as not to interfere with the normal conduct of Promos'
business.
(c) Promos shall make available to OmniCorder upon written
request and at OmniCorder's expense, but consistent with Promos' business
requirements, (i) Promos' personnel to assist OmniCorder in locating and
obtaining the Books and Records, and (ii) any of Promos' personnel whose
assistance or participation is reasonably required by OmniCorder in anticipation
of, or preparation for, existing or future litigation, tax returns or other
matters in which OmniCorder is involved.
(d) The foregoing provisions of this Section 5.02 shall be in
addition to the obligations of Promos under Section 6.01 hereof.
5.03. Registration of Promos Common Stock. Promos will use its best
efforts to include the Consideration Shares in a registration statement of
Promos to be filed with the Commission not later than the date which is sixty
(60) days following the Closing Date. Such registration statement shall also
register the shares of Promos Common Stock to be issued by Promos in the
Offering, and such other securities as Promos may determine. Promos shall use
its best efforts to have such registration statement declared effective by the
Commission as soon as possible following the initial filing of such registration
statement, but in any event not later than one hundred eighty (180) days
following the Closing Date. Promos shall maintain the effectiveness of the
registration statement from the date the Commission declares such registration
statement effective through and until the date which is twelve (12) months
following the Closing Date. All costs relating to such registration shall be
borne by Promos.
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5.04. Appointment of Directors. Immediately following the Closing,
Promos shall increase the size of the Board of Directors of Promos to ten (10)
members and cause the persons listed in Exhibit A hereto to be elected to the
Board of Directors of Promos; provided, however, that the actions described in
this Section 5.04 shall take effect only upon compliance by Promos with the
provisions of Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder. At the first annual meeting of Promos' stockholders and thereafter,
the affirmative vote of the holders of a majority of the shares of Promos Common
Stock present or represented at each annual meeting of stockholders shall be
required to elect members of Promos' Board of Directors.
5.05. Promos Name Change and Exchange Listing. Promptly following the
Closing, Promos shall take all required legal actions to (a) change its
corporate name to "OmniCorder Technologies, Inc." and (b) upon satisfaction of
the original listing requirements, list Promos Common Stock for trading on the
American Stock Exchange.
5.06. Confidentiality. (a) Unless and until the Acquisition is
consummated, Promos shall keep confidential any information which has been
furnished to Promos by or on behalf of OmniCorder in connection with the
transactions contemplated by this Agreement (the "Confidential Information").
Promos shall use the Confidential Information solely in connection with the
transactions contemplated by this Agreement or in connection with operating the
Business following the Closing.
(b) Promos may disclose the Confidential Information to any of
its directors, officers, employees, agents and advisors, and prospective
investors and lenders, who need to know such Confidential Information in
connection with the transactions contemplated by this Agreement; provided that,
prior to making such disclosure, Promos shall inform all such directors,
officers, employees, agents and advisors and prospective investors and lenders
of the confidential nature of such Confidential Information and such persons
shall agree, for the benefit of OmniCorder, to be bound by the terms and
conditions of this Section 5.06. In any event, Promos shall be liable for any
breach of this Section 5.06 by any of Promos' directors, officers, employees,
agents and advisors, and prospective lenders and investors, to whom Confidential
Information shall have been furnished. Promos shall maintain a list of all
persons who have been furnished with Confidential Information. Promos may
disclose Confidential Information if required by legal process or by operation
of applicable law; provided that Promos shall first promptly notify OmniCorder
thereof so that OmniCorder may seek an appropriate protective order and/or waive
compliance by Promos with the provisions of this Section 5.06.
(c) The obligations of Promos under paragraphs (a) and (b) of
this Section 5.06 do not apply to information which (i) was or becomes generally
available to the public other than as a result of disclosure in violation of
paragraph (a) or (b) of this Section 5.06, or (ii) was or becomes available to
Promos on a non-confidential basis from a source other than OmniCorder or its
agents or advisors, provided that such source is not bound by a confidentiality
agreement with OmniCorder in respect thereof.
(d) Notwithstanding the foregoing, pursuant to Treasury
Regulation Section 1.6011-4(b)(3)(iii), each of Promos and OmniCorder (and each
of their respective employees, representatives, or other agents) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to each of Promos and OmniCorder
relating to such treatment and such structure.
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(e) Without intending to limit the remedies available to
OmniCorder, Promos agrees that damages at law would be an insufficient remedy to
OmniCorder in the event of any breach by Promos of this Section 5.06 and that
OmniCorder shall be entitled to injunctive relief or other equitable remedies in
the event of any such breach.
5.07. Actions Following Execution of this Agreement. Promos hereby
covenants that it has not taken any, and will not take any, actions following
the execution and delivery of this Agreement or the Closing which would be
inconsistent with the intention of the parties set forth in Section 4.06 hereof.
5.08. Further Assurances. At any time or from time to time after the
Closing Date, Promos shall, at the request of OmniCorder and at OmniCorder's
expense, execute and deliver any further instruments or documents and take all
such further action as OmniCorder may reasonably request in order to evidence
the consummation of the transactions contemplated hereby.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.01. Taxes. (a) Promos shall be liable for all income and franchise
taxes payable as a result of the operations of the Business by OmniCorder prior
to the Closing. Promos also shall be liable for all income and franchise taxes
payable as a result of the operations of the Business by Promos from and after
the Closing.
(b) After the Closing Date, Promos and OmniCorder shall make
available to the other, as reasonably requested, and to any taxing authority,
all information, records or documents relating to tax liabilities or potential
tax liabilities of or relating to OmniCorder for all periods prior to or
including the Closing Date and shall preserve all such information, records and
documents until the expiration of any applicable statute of limitations or
extensions thereof. Promos shall prepare and provide to OmniCorder any federal,
state, local or foreign tax information package requested by OmniCorder for
OmniCorder's use in preparing its tax returns. Such tax information packages
shall be completed by Promos and provided to OmniCorder within ninety (90) days
after the Closing. Each party shall bear its own expenses in complying with the
foregoing provisions.
(c) Promos shall promptly notify OmniCorder in writing upon
receipt by Promos or any Affiliate of Promos of notice of any pending or
threatened federal, state, local or foreign income or franchise tax audits or
assessments of or relating to the Business for taxable periods ending prior to
or including the Closing Date. Promos shall have the sole right to represent the
Business' interests in any tax audit or administrative or court proceeding
relating to taxable periods prior to the Closing.
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6.02. Stock Options and Warrants. (a) At the Closing, the terms of
each outstanding stock option granted by OmniCorder to purchase shares of common
stock, par value $.01 per share, of OmniCorder (the "OmniCorder Common Stock"),
whether vested or unvested (an "OmniCorder Stock Option"), shall be adjusted as
appropriate to provide that, at the Closing, each OmniCorder Stock Option
outstanding immediately prior to the Closing shall be deemed to constitute and
shall become an option to acquire, on the same terms and conditions as were
applicable under such OmniCorder Stock Option, the same number of shares of
Promos Common Stock as the holder of such OmniCorder Stock Option would have
been entitled to receive had such holder exercised such OmniCorder Stock Option
in full immediately prior to the Closing, at a price per share of Promos Common
Stock equal to (i) the aggregate exercise price for the shares of OmniCorder
Common Stock otherwise purchasable pursuant to such OmniCorder Stock Option,
divided by (ii) the aggregate number of shares of Promos Common Stock deemed
purchasable pursuant to such OmniCorder Stock Option; provided, however, that,
after aggregating all the shares of a holder subject to OmniCorder Stock
Options, any fractional share of Promos Common Stock resulting from such
calculation for such holder shall be rounded up to the nearest whole share; and
provided, further, that in the case of any stock option to which Section 421 of
the Code applies by reason of its qualification as a qualified stock option
under any of Sections 422 through 424 of the Code, the option price, the number
of shares purchasable pursuant to such option, and the terms and conditions of
exercise of such option shall be determined in order to comply with Section 424
of the Code. As of the date hereof, there are outstanding OmniCorder Stock
Options to purchase 1,217,860 shares of OmniCorder Common Stock, which would be
exercisable into 2,501,095 shares of Promos Common Stock pursuant to this
Section 6.02(a).
(b) At the Closing, the terms of each outstanding warrant issued
by OmniCorder to purchase shares of OmniCorder Common Stock, whether vested or
unvested (an "OmniCorder Warrant"), shall be adjusted as appropriate to provide
that, at the Closing, each OmniCorder Warrant outstanding immediately prior to
the Closing shall be deemed to constitute and shall become a warrant to acquire,
on the same terms and conditions as the existing OmniCorder Warrants, the same
number of shares of Promos Common Stock as the holder of such OmniCorder Warrant
would have been entitled to receive had such holder exercised such OmniCorder
Warrant in full immediately prior to the Closing. As of the date hereof, there
are outstanding OmniCorder Warrants to purchase 600,000 shares of OmniCorder
Common Stock, which would be exercisable into 1,232,208 shares of Promos Common
Stock pursuant to this Section 6.02(b).
(c) As soon as practicable after the Closing, Promos shall
deliver to the holders of (i) OmniCorder Stock Options, appropriate notices
setting forth such holders' rights pursuant to this Agreement and the agreements
evidencing the grants of such OmniCorder Stock Options and that such OmniCorder
Stock Options and agreements shall be assumed by Promos and shall continue in
effect on the same terms and conditions (subject to the adjustments required by
this Section 6.02); and (ii) OmniCorder Warrants, new warrant agreements and/or
warrant certificates evidencing such holders' rights to purchase shares of
Promos Common Stock (the "Promos Warrants") upon the exercise of such Promos
Warrants.
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ARTICLE VII
CONDITIONS TO PROMOS' OBLIGATIONS
The obligations of Promos to purchase the Assets and assume the
Liabilities shall be subject to the satisfaction (or waiver) on or prior to the
Closing Date of all of the following conditions:
7.01. Representations, Warranties and Covenants of OmniCorder.
OmniCorder shall have complied in all material respects with all of its
agreements and covenants contained herein to be performed at or prior to the
Closing Date, and all the representations and warranties of OmniCorder contained
herein shall be true in all material respects on and as of the Closing Date with
the same effect as though made on and as of the Closing Date, except as
otherwise contemplated hereby, and except to the extent that such
representations and warranties were made as of a specified date and as to such
representations and warranties the same shall continue on the Closing Date to
have been true as of the specified date, and except to the extent that any
failure of such representations and warranties to be true as aforesaid when
taken in the aggregate would not have a material adverse effect on the business
or financial condition of the Business. Promos shall have received a certificate
of OmniCorder, dated as of the Closing Date and signed by the President and
Chief Executive Officer of OmniCorder, certifying as to the fulfillment of the
conditions set forth in this Section 7.01.
7.02. No Prohibition. No statute, rule or regulation or order of any
court or administrative agency shall be in effect which restrains or prohibits
Promos from consummating the transactions contemplated hereby.
7.03. Further Action. All consents, approvals, authorizations,
exemptions and waivers from third parties that shall be required in order to
enable Promos to consummate the transactions contemplated hereby shall have been
obtained (except for such consents, approvals, authorizations, exemptions and
waivers the absence of which would not render such consummation illegal).
7.04. Consummation of the Offering. OmniCorder shall have obtained and
closed on, before or simultaneously with the consummation of the transactions
contemplated by this Agreement, at least $7,500,000 in gross proceeds from the
Offering.
7.05. Employment Agreements. OmniCorder shall have entered into a
five-year employment agreement with Xxxx X. Xxxxx, substantially in the form
attached hereto as Exhibit B, which agreement shall be assumed by Promos at
Closing.
7.06. Consummation of Sale of Promotional Products Business.
Immediately following the closing of the Acquisition, Promos shall complete the
sale to Xxxxxx X. Xxxxxxx ("Xxxxxxx") of all of the outstanding interests it
owns in Promos Ventures, LLC, a Colorado limited liability company and a
wholly-owned subsidiary of Promos, through which Promos' promotional business is
owned as of the Closing, pursuant to the terms and conditions of the purchase
and sale agreement substantially in the form attached hereto as Exhibit C, which
agreement shall contain an indemnity, in a form satisfactory to Promos and
OmniCorder,
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indemnifying Promos following the Closing for any taxes owed by Promos for any
operations prior to the Closing.
7.07. Supporting Documents. Promos shall have received the following:
(a) Copies of resolutions of the Board of Directors and the
stockholders of OmniCorder, certified by the President or Secretary of
OmniCorder, authorizing and approving the execution, delivery and performance of
this Agreement and all other documents and instruments to be delivered pursuant
hereto and thereto.
(b) A certificate of incumbency executed by the Secretary of
OmniCorder certifying the names, titles and signatures of the officers
authorized to execute any documents referred to in this Agreement.
(c) Such additional supporting documentation and other
information with respect to the transactions contemplated hereby as Promos may
reasonably request.
(d) An agreement in writing from Xxxxxx & Kliegman LLP, in form
and substance reasonably satisfactory to Promos, to deliver copies of the audit
opinions with respect to any and all financial statements of OmniCorder that had
been audited by such firm, which audit opinions shall contain consents to the
filing of such audit opinions with the Commission in connection with any filing
to be made by Promos with the Commission following the Closing.
7.08. Opinion of OmniCorder's Counsel. Promos shall have received from
Xxxxxxxxx Xxxxxxx, LLP, New York, New York, counsel for OmniCorder, a favorable
opinion dated the Closing Date to the effect set forth in Exhibit D hereto.
7.09. Proceedings and Documents. All corporate and other proceedings
and actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents mentioned
herein or incident to any such transactions shall be satisfactory in form and
substance to Promos. OmniCorder shall furnish to Promos such supporting
documentation and evidence of the satisfaction of any or all of the conditions
precedent specified in this Article 7 as Promos or its counsel may reasonably
request.
ARTICLE VIII
CONDITIONS TO OMNICORDER'S OBLIGATIONS
The obligations of OmniCorder to sell the Assets shall be subject to
the satisfaction (or waiver) on or prior to the Closing Date of all of the
following conditions:
8.01. Representations, Warranties and Covenants of Promos. Promos
shall have complied in all material respects with all of its agreements and
covenants contained herein to be performed at or prior to the Closing Date, and
all of the representations and warranties of Promos contained herein shall be
true in all material respects on and as of the Closing Date with the same effect
as though made on and as of the Closing Date, except as otherwise contemplated
hereby, and except to the extent that such representations and warranties were
made as of a specified date
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and as to such representations and warranties the same shall continue on the
Closing Date to have been true as of the specified date, and except to the
extent that any failure of such representations and warranties to be true as
aforesaid when taken in the aggregate would not have a material adverse effect
on the business or financial condition of Promos and its subsidiaries, taken as
a whole. OmniCorder shall have received a certificate of Promos, dated as of the
Closing Date and signed by the President of Promos, certifying as to the
fulfillment of the conditions set forth in this Section 8.01.
8.02. No Prohibition. No statute, rule or regulation or order of any
court or administrative agency shall be in effect which restrains or prohibits
OmniCorder from consummating the transactions contemplated hereby.
8.03. Further Action. All consents, approvals, authorizations,
exemptions and waivers from third parties that shall be required in order to
enable OmniCorder to consummate the transactions contemplated hereby shall have
been duly obtained (except for such consents, approvals, authorizations,
exemptions and waivers the absence of which would not render such consummation
illegal).
8.04. Consummation of the Offering. OmniCorder shall have obtained and
closed on, before or simultaneously with the consummation of the transactions
contemplated by this Agreement, at least $7,500,000 in gross proceeds from the
Offering.
8.05. Consummation of Stock Sales. (a) Promos shall have consummated
the purchase of an aggregate of 1,135,300 shares of Promos Common Stock owned by
seven existing holders of Promos Common Stock in consideration for an aggregate
of $10.00 simultaneously with the closing of the Acquisition, pursuant to the
terms of letter agreements substantially in the form attached hereto as Exhibit
E, and contemporaneously with the consummation of such transaction, Promos shall
have redeemed and cancelled such shares.
(b) OmniCorder shall have consummated the purchase of 7,764,700
shares of Promos Common Stock owned by Xxxxxxx in consideration for $180,000
(and paid counsel for Promos the sum of $20,000) simultaneously with the closing
of the Acquisition, pursuant to the terms of the stock purchase agreement
substantially in the form attached hereto as Exhibit F.
8.06. Supporting Documents. OmniCorder shall have received the
following:
(a) Copies of resolutions of Promos' board of directors
certified by the Secretary of Promos, authorizing and approving the execution,
delivery and performance of this Agreement and all other documents and
instruments to be delivered pursuant hereto and thereto.
(b) A certificate of incumbency executed by the Secretary of
Promos certifying the names, titles and signatures of the officers authorized to
execute the documents referred to in paragraph (a) above.
(c) A certificate of Corporate Stock Transfer, Inc., Promos'
transfer agent and registrar, certifying as of the business day prior to the
date any shares of Promos Common Stock are first issued in the Offering, and
before taking into consideration the sale to
17
Omnicorder of 7,764,700 shares of Promos Common Stock and redemption and
cancellation of 1,135,300 shares of Promos Common Stock as described in Section
8.05 hereof, a true and complete list of the names and addresses of the record
owners of all of the outstanding shares of Promos Common Stock, together with
the number of shares of Promos Common Stock held by each record owner.
(d) A letter from Corporate Stock Transfer, Inc., Promos'
transfer agent and registrar, setting forth that the number of shares of Promos
Common Stock that would be issued and outstanding as of the Closing Date, but
prior to the closing of the Offering and after giving effect to the sale to
OmniCorder of 7,764,700 shares of Promos Common Stock and redemption and
cancellation of 1,135,300 shares of Promos Common Stock as described in Section
8.05 hereof, is 1,133,600 shares of Promos Common Stock.
(e) (i) The executed resignations of Xxxxxxx and Levy as
directors and officers of Promos, with the director resignations to take effect
only upon compliance by Promos with the provisions of Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, (ii) executed releases from
each of Xxxxxxx and Xxxx in the form attached hereto as Exhibit G, and (iii)
stock power(s) executed in blank by Harayda and seven other existing holders of
Promos Common Stock evidencing the sale to OmniCorder of 7,764,700 shares of
Promos Common Stock and redemption and cancellation of 1,135,300 shares of
Promos Common Stock as described in Section 8.05 hereof.
(f) Such additional supporting documentation and other
information with respect to the transactions contemplated hereby as OmniCorder
may reasonably request.
8.07. Opinion of OmniCorder's Counsel. OmniCorder shall have received
from Xxxxx Xxxxxx & Associates, PC, Greenwood Village, Colorado, counsel for
Promos, a favorable opinion dated the Closing Date to the effect set forth in
Exhibit H hereto.
8.08. Proceedings and Documents. All corporate and other proceedings
and actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents mentioned
herein or incident to any such transactions shall be satisfactory in form and
substance to Promos shall furnish to OmniCorder such supporting documentation
and evidence of the satisfaction of any or all of the conditions precedent
specified in this Article 8 as OmniCorder or its counsel may reasonably request.
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ARTICLE IX
EMPLOYMENT AND EMPLOYEE BENEFITS ARRANGEMENTS
9.01. Employment. As of the Closing Date, Promos shall offer to all
current employees of OmniCorder employment at the same salaries and wages
(including commission and sales incentive programs) and with substantially the
same or better Benefit Arrangements as those in effect immediately prior to the
Closing Date.
ARTICLE X
TERMINATION PRIOR TO CLOSING
10.01. Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) By the mutual written consent of Promos and OmniCorder; or
(b) By either OmniCorder or Promos in writing, without liability
to the terminating party on account of such termination (provided the
terminating party is not otherwise in default or in breach of this Agreement),
if the Closing shall not have occurred on or before December 31, 2003; or
(c) By either OmniCorder or Promos in writing, without liability
to the terminating party on account of such termination (provided the
terminating party is not otherwise in default or in breach of this Agreement),
if the other party, as the case may be, shall (i) fail to perform in any
material respect its agreements contained herein required to be performed prior
to the Closing Date, or (ii) materially breach any of its representations,
warranties or covenants contained herein.
10.02. Effect on Obligations. Termination of this Agreement pursuant
to this Article shall terminate all obligations of the parties hereunder, except
for the obligations under Sections 11.08 and 11.09 and the last sentence of
Section 4.03; provided, however, that termination pursuant to paragraphs (b) or
(c) of Section 10.01 shall not relieve the defaulting or breaching party from
any liability to the other party hereto.
ARTICLE XI
MISCELLANEOUS
11.01. No Survival. The representations and warranties made in this
Agreement or in any certificate or other document delivered pursuant hereto or
in connection herewith and the covenants and agreements contained herein to be
performed or complied with at or prior to the Closing shall not survive the
Closing. The covenants and agreements contained herein to be performed or
complied with after the Closing shall survive without limitation as to time,
unless the covenant or agreement specifies a term, in which case such covenant
or agreement shall survive for a period of one year following the expiration of
such specified term and shall thereupon expire (except to the extent a written
notice asserting a claim for breach of such
19
covenant or agreement shall have been given to the party alleged to have
committed such breach prior to the end of such one-year period).
11.02. Entire Agreement. This Agreement (including the Disclosure
Schedule) constitutes the sole understanding of the parties with respect to the
subject matter hereof. Matters disclosed by OmniCorder to Promos pursuant to any
Section of this Agreement shall be deemed to be disclosed with respect to all
Sections of this Agreement.
11.03. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors of the parties hereto; provided, however, that this Agreement may not
be assigned by any party without the prior written consent of the other party
hereto, except that Promos may, at its election, assign this Agreement to any
direct or indirect wholly owned subsidiary so long as the representations and
warranties of Promos made herein are equally true of such assignee. Such
assignee shall execute a counterpart of this Agreement agreeing to be bound by
the provisions hereof as "OmniCorder" and, if there is more than one assignee,
agreeing to be jointly and severally liable for all of the obligations of the
assignor hereunder. If this Agreement is assigned with such consent or pursuant
to such exception, the terms and conditions hereof shall be binding upon and
shall inure to the benefit of the parties hereto and their respective assigns;
provided, however, that no assignment of this Agreement or any of the rights or
obligations hereof shall relieve the assignor of its obligations under this
Agreement.
11.04. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11.05. Headings. The headings of the Articles, Sections and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
11.06. Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof.
11.07. Broker's Fees. Each of the parties hereto (i) represents and
warrants that it has not taken and will not take any action that would cause the
other party hereto to have any obligation or liability to any person or entity
for a finder's or broker's fee, other than as set forth in the Disclosure
Schedule, and (ii) agrees to indemnify the other party hereto for breach of the
foregoing representation and warranty, whether or not the Closing occurs.
Notwithstanding the foregoing, Promos shall pay to National Securities
Corporation, C.C.R.I. Corporation and LMU & Company at the Closing certain
transaction fees and expenses by wire transfer.
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11.08. Expenses. OmniCorder and Promos shall each pay all costs and
expenses incurred by it or on its behalf in connection with this Agreement and
the transactions contemplated hereby, including, without limiting the generality
of the foregoing, fees and expenses of its own financial consultants,
accountants and counsel; provided that Promos shall assume and pay all
reasonable out-of-pocket fees and expenses incurred by National Securities
Corporation, C.C.R.I. Corporation and LMU & Company in connection with this
Agreement and the Offering, including, without limitation, travel expenses
incurred in connection with the roadshow for the Offering, and printing
expenses.
11.09. Notices. Any notice, request, instruction or other document to
be given hereunder by either party hereto to the other party shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid,
if to OmniCorder to:
OmniCorder Technologies, Incorporated
00-0 Xxxxxxxxxx Xxxxx
X. Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxx Xxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxxxxx Traurig, LLP
The MetLife Building
000 Xxxx Xxxxxx - 00xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
if to Promos to:
Promos, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000 Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
President
with a copy to:
Xxxxx Xxxxxx & Associates, PC
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to
21
the party to whom it is directed upon actual receipt by such party. Any notice
which is addressed and mailed in the manner herein provided shall be
conclusively presumed to have been duly given to the party to which it is
addressed at the close of business, local time of the recipient, on the third
day after the day it is so placed in the mail.
11.10. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Colorado applicable to agreements
made and to be performed wholly within such jurisdiction. Each of the parties
agrees to (i) the irrevocable designation of the Secretary of State of the State
of Colorado as its agent upon whom process against it may be served and (ii)
personal jurisdiction in any action brought in any court, Federal or State,
within the State of Colorado having subject matter jurisdiction arising under
this Agreement.
11.11. Public Announcements. Neither OmniCorder nor Promos shall make
any public statements, including, without limitation, any press releases, with
respect to this Agreement and the transactions contemplated hereby without the
prior written consent of the other party (which consent may not be unreasonably
withheld), except as may be required by law.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
OMNICORDER TECHNOLOGIES, INC.
By:----------------------------------------
Name:
Title:
PROMOS, INC.
By:----------------------------------------
Name:
Title:
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