|
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of August 8, 2003
(this "Agreement") is made by and among Power Medical
Interventions, Inc., a Pennsylvania corporation ("PMI-PA"), and
Power Medical Interventions, Inc., a Delaware corporation and
wholly-owned subsidiary of PMI-PA ("PMI-DE").
Introduction
The Boards of Directors and shareholders of each of the parties
hereto have determined that it is desirable for, and in the best
interest of, their respective business entities that PMI-PA merge
with and into PMI-DE (the "Merger") pursuant to the terms and
conditions of this Agreement and in accordance with the Delaware
General Corporation Law (DGCL) and the Pennsylvania Business
Corporation Law. Accordingly, in consideration of the mutual
covenants and respective agreements hereinafter set forth, the
parties hereby agree as follows:
1.
Merger Organization .
1.1. The Merger . As of the Effective Time
(as defined in subsection 1.2 hereof), (a) PMI-PA shall be merged
with and into PMI-DE, and the separate existence of PMI-PA shall
thereupon cease, and (b) PMI-DE, as the surviving corporation in
the Merger (the "Surviving Corporation"), shall continue its
corporate existence and be organized under and governed by the DGCL
under its present name and with the corporate purposes specified in
its Certificate of Incorporation.
1.2. Effective Time . The Merger shall be
effected by the filing of a Certificate of Merger with the
Secretary of State of Delaware and Articles of Merger with the
Secretary of State of Pennsylvania, provided, however, that such
Certificate of Merger and Articles of Merger shall not be filed
until PMI-DE has received a commitment from investors (including
Koch Genesis, LLC, or any affiliate thereof) for a financing
involving the issuance of shares of the Preferred Stock of
PMI-DE. The Merger shall become effective on the date and at
the time when such Certificate of Merger and Articles of Merger are
filed (the "Effective Time").
1.3. Certificate of Incorporation and By-Laws
. The Certificate of Incorporation and the By-Laws of PMI-DE,
as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation and the By-Laws of the Surviving
Corporation until thereafter amended.
1.4. Directors and Officers. Upon the
Effective Date, the Board of Directors of the Surviving Corporation
shall consist of those persons who were directors of PMI-DE
immediately prior to the Effective Date, and the officers of the
Surviving Corporation shall be the persons who were officers of
PMI-DE immediately prior to the Effective Date, each such person to
hold, in accordance with the By-laws and at the pleasure of the
Board of Directors of the Surviving Corporation, the same office or
offices with the Surviving Corporation as he or she then held with
PMI-DE.
2.
Conversion of Capital Stock
2.1.
Stock of PMI-DE At the Effective Time, each share of
Common Stock, $.01 par value per share of PMI-DE issued and
outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the
holder thereof, be cancelled and extinguished and no consideration
shall be paid in respect thereof.
2.2.
Conversion of PMI-PA Common and Preferred Stock . At
the Effective Time, each share of (i) PMI-PA Common Stock, $.001
par value per share, (ii) PMI-PA Series A Convertible Preferred
Stock, $.001 par value per share, (iii) PMI-PA Series B Convertible
Preferred Stock, $.001 par value per share, (iv) PMI-PA Series C
Convertible Preferred Stock, $.001 par value per share, (v) PMI-PA
Series D Convertible Preferred Stock, $.001 par value per share,
and (vi) PMI-PA Series E Convertible Preferred Stock, $.001 par
value per share, issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be canceled and
extinguished and, in consideration thereof, each holder thereof
shall receive the shares of Common Stock, $.001
|
