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Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Merger Agreement") is dated as of
June 26, 2000, by and between Immune Response, Inc., a Colorado Corporation
("Immune"), and Opticon Medical, Inc., a Delaware corporation and wholly-owned
subsidiary of Immune ("Opticon"). Immune and Opticon are hereinafter sometimes
collectively referred to as the "Constituent Corporations."
RECITALS
A. The respective Boards of Directors of Immune and Opticon have
determined that it is advisable and in the best interests of each of such
corporations that Immune merge with and into Opticon upon the terms and subject
to the conditions herein provided.
B. The Board of Directors of Immune has, by resolution duly adopted,
approved this Merger Agreement and directed that it be executed by the
undersigned officer.
C. The Board of Directors of Opticon has, by resolution duly adopted,
approved this Merger Agreement and directed that it be executed by the
undersigned officer.
AGREEMENT
In consideration of the mutual agreements herein contained, the parties
agree that Immune shall be merged with and into Opticon and that the terms and
conditions of the merger, the mode of carrying the merger into effect, the
manner of converting the shares of Immune and certain other provisions relating
thereto shall be as hereinafter set forth.
SECTION 1. SURVIVING CORPORATION. Subject to the terms and provisions
of this Agreement, and in accordance with the Colorado Business Corporation Act
("CBCA") and the Delaware General Corporation Law ("DGCL"), at the Effective
Time (as defined in Section 7 hereof) Immune shall be merged with and into
Opticon (the "Merger"). Opticon shall be the surviving corporation (hereinafter
sometimes called the "Surviving Corporation") of the Merger and shall continue
its corporate existence under the laws of the State of Delaware. At the
Effective Time, the separate corporate existence of Immune shall cease.
SECTION 2. EFFECT OF THE MERGER. At the Effective Time, the Merger
shall have the effects provided for herein and in ss.7-111-106 of the CBCA and
ss.253 of the DGCL.
SECTION 3. CERTIFICATE OF INCORPORATION. As of the Effective Time, the
Certificate of Incorporation of Opticon, as in effect immediately prior to the
Effective Time, shall continue to be the Certificate of Incorporation of the
Surviving Corporation until thereafter duly altered, amended, or repealed in
accordance with the provisions thereof and applicable law.
SECTION 4. REGULATIONS. As of the Effective Time, the By-laws of
Opticon, as in effect immediately prior to the Effective Time, shall continue to
be the By-laws of the Surviving Corporation until thereafter duly altered,
amended, or repealed in accordance with the provisions thereof, the Certificate
of Incorporation of the Surviving Corporation, and applicable law.
SECTION 5. DIRECTORS OF THE SURVIVING CORPORATION. At the Effective
Time, each person who is a director of Opticon immediately prior to the
Effective Time shall remain a director of the Surviving Corporation and each
such person shall serve as a director of the Surviving Corporation for the
balance of the term for which such person was elected a director of Opticon and
until his successor is duly elected and qualified in the manner provided in the
By-laws or the Certificate of Incorporation of the Surviving Corporation or as
otherwise provided by law or until his earlier death, resignation, or removal in
the manner provided in the By-laws or the Certificate of Incorporation of the
Surviving Corporation or as otherwise provided by law.
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SECTION 6. OFFICERS OF THE SURVIVING CORPORATION. At the Effective
Time, each person who is an officer of Opticon immediately prior to the
Effective Time shall remain an officer of the Surviving Corporation with each
such person to hold the same office in the Surviving Corporation, in accordance
with the By-laws thereof, as he held in Opticon immediately prior to the
Effective Time.
SECTION 7. EFFECTIVE TIME. The Merger shall become effective, in
accordance with the applicable provisions of ss. 7-111-106 of the CBCA and
ss.253 of the DGCL upon the filing of a certificate of merger with the Secretary
of State of Delaware. The time when the Merger shall become effective is herein
referred to as the "Effective Time."
SECTION 8. ADDITIONAL ACTIONS. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of Immune acquired
or to be acquired by reason of, or as a result of, the Merger, or (b) otherwise
to carry out the purpose of this Merger Agreement, Immune and its proper
officers and directors shall be deemed to have granted hereby to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
proper deeds, assignments and assurances in law and to do all acts necessary or
proper to vest, perfect or confirm title to and the possession of such property
or rights in the Surviving Corporation and otherwise to carry out the purposes
of this Merger Agreement; and the proper officers and directors of the Surviving
Corporation are hereby fully authorized in the name of Immune or otherwise to
take any and all such action.
SECTION 9. CONVERSION OF SHARES. At the Effective Time, each share of
common stock, $.0001 par value per share, of Immune ("Immune Common Stock")
issued and outstanding immediately prior to the Effective Time, by operation of
law, shall be automatically converted into one share of common stock, $.0001 par
value per share, of Opticon ("Opticon Common Stock"), and each share of 6%,
Series A Convertible Preferred Stock, $.0001 par value per share, of Immune
("Immune Preferred Stock") issued and outstanding immediately prior to the
Effective Time, by operation of law, shall be automatically converted into one
share of Series A, 6% Convertible Preferred Stock, $.0001 par value per share,
of Opticon ("Opticon Preferred Stock"). No other property, shares, other
securities or considerations of any type will be distributed or issued in
connection with or as a result of the Merger. At the Effective Time, each share
of Opticon Common Stock outstanding immediately prior to the Effective Time, and
any outstanding shares of Opticon Preferred Stock, shall be cancelled, without
payment of any consideration therefor. Each stock certificate that represents
shares of Immune Common Stock, after the Effective Time, shall represent the
same number of shares of Opticon Common Stock, and each stock certificate that
represents shares of Immune Preferred Stock, after the Effective Time, shall
represent the same number of shares of Opticon Preferred Stock. Stockholders
will not be required to surrender stock certificates.
At the Effective Time, all stock options, warrants or other rights to
acquire Immune Common Stock will automatically be converted into the right to
purchase the same number of shares of Opticon Common Stock at the same price per
share, upon the same terms and upon the same conditions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Immune Response, Inc.
a Colorado corporation
By: /s/ William J. Post
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William J. Post
President and Chief Executive Officer
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Opticon Medical, Inc.
a Delaware corporation
By: /s/ William J. Post
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William J. Post
President and Chief Executive Officer
