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EXHIBIT 2.1
MERGER AGREEMENT
THIS AGREEMENT AND PLAN OF MERGER dated July 27, 2001 (the "AGREEMENT")
is between I-Flow Corporation, a Delaware corporation ("I-FLOW DELAWARE"), and
I-Flow Corporation, a California corporation ("I-FLOW CALIFORNIA"). I-Flow
Delaware and I-Flow California are sometimes referred to herein as the
"CONSTITUENT CORPORATIONS."
RECITALS
A. I-Flow Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 45,000,000
shares, $0.001 par value, of which 40,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." The shares of
Preferred Stock of I-Flow Delaware are undesignated as to series, rights,
preferences, privileges or restrictions.
B. I-Flow California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 45,000,000
shares, no par value, of which 40,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." Of the Preferred Stock: (i)
866,175 shares are designated Series A Preferred Stock, all of which have been
issued and none of which are outstanding as a result of conversion into Common
Stock; (ii) 656,250 shares of Preferred Stock are designated as Series B
Preferred Stock, all of which have been issued and none of which are outstanding
as a result of conversion into Common Stock; and (iii) the remaining shares of
Preferred Stock of I-Flow California are undesignated as to series, rights,
preferences, privileges or restrictions.
C. The Board of Directors of I-Flow California has determined that, for
the purpose of effecting the reincorporation of I-Flow California in the State
of Delaware, it is advisable and in the best interests of I-Flow California and
its shareholders that I-Flow California merge with and into I-Flow Delaware upon
the terms and conditions herein provided.
D. The respective Boards of Directors of I-Flow Delaware and I-Flow
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective shareholders and executed by the
undersigned officers.
E. The respective stockholders and shareholders of I-Flow Delaware and
I-Flow California have approved this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, I-Flow Delaware and I-Flow California hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
AGREEMENT
1. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
I-Flow California shall be merged with and into I-Flow Delaware (the "MERGER");
the separate existence of I-Flow California shall cease and I-Flow Delaware
shall survive the Merger and shall continue to be governed by the laws of the
State of Delaware; I-Flow Delaware shall be, and is herein sometimes referred to
as, the "SURVIVING CORPORATION;" and the name of the Surviving Corporation shall
be I-Flow Corporation.
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1.2 Effectiveness. The Merger shall become effective on the date and
at the time when the Certificate of Merger is filed with the Secretary of State
of the State of Delaware. The date and time when the Merger shall become
effective is herein called the "EFFECTIVE DATE OF THE MERGER."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of I-Flow California shall cease and I-Flow Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
I-Flow California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of I-Flow California
in the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of I-Flow California in the same manner as if
I-Flow Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
I-Flow Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of I-Flow Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of I-Flow
California immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
3. MANNER OF CONVERSION OF STOCK
3.1 I-Flow California Common Stock. Upon the Effective Date of the
Merger, each share of I-Flow California Common Stock, no par value, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be changed and converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $0.001 par value, of the Surviving
Corporation.
3.2 I-Flow California Options and Stock Purchase Rights. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the stock option plans (including without limitation the 2001 Stock
Incentive Plan) and all other employee benefit plans of I-Flow California. Each
outstanding and unexercised option or other right to purchase or security
convertible into I-Flow California Common Stock shall become an option or right
to purchase or a security convertible into the Surviving Corporation's Common
Stock on the basis of one share of the Surviving Corporation's Common Stock for
each share of I-Flow California Common Stock issuable pursuant to any such
option, stock purchase right or convertible security, on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such I-Flow California option, stock purchase right or
convertible security at the Effective Date of the Merger. There are no options,
purchase
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rights for or securities convertible into Preferred Stock of I-Flow California.
A number of shares of the Surviving Corporation's Common Stock shall be reserved
for issuance upon the exercise of options, stock purchase rights or convertible
securities equal to the number of shares of I-Flow California Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.3 I-Flow Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Common Stock, $0.001 par value, of I-Flow Delaware issued
and outstanding immediately prior thereto shall, by virtue of the Merger and
without any action by I-Flow Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
3.4 Exchange of Certificates. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of I-Flow
California Common Stock may, at such stockholder's option, surrender the same
for cancellation to American Stock Transfer & Trust Company as exchange agent
(the "EXCHANGE AGENT"), and each such holder shall be entitled to receive in
exchange therefor a certificate or certificates representing the number of
shares of the Surviving Corporation's Common Stock into which such holders'
shares of I-Flow California Common Stock were converted as herein provided.
Unless and until so surrendered, each outstanding certificate theretofore
representing shares of I-Flow California Common Stock shall be deemed for all
purposes to represent the number of whole shares of the Surviving Corporation's
Common Stock into which such shares of I-Flow California Common Stock were
converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of Common Stock of the Surviving Corporation
represented by such outstanding certificate as provided above. Each certificate
representing Common Stock of the Surviving Corporation so issued in the Merger
shall bear the same legends, if any, with respect to the restrictions on
transferability as the certificates of I-Flow California so converted and given
in exchange therefor, unless otherwise determined by the Board of Directors of
the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of I-Flow Delaware stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
person requesting such transfer pay to I-Flow Delaware or the Exchange Agent any
transfer or other taxes payable by reason of issuance of such new certificate in
a name other than that of the registered holder of the certificate surrendered
or establish to the satisfaction of I-Flow Delaware that such tax has been paid
or is not payable.
4. GENERAL
4.1 Covenants of I-Flow Delaware. I-Flow Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State
of California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law;
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(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by I-Flow Delaware of all of the franchise
tax liabilities of I-Flow California; and
(c) Take such other actions as may be required by the California
General Corporation Law.
4.2 Further Assurances. From time to time, as and when required by
I-Flow Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of I-Flow California such deeds and other instruments, and
there shall be taken or caused to be taken by I-Flow Delaware and I-Flow
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by I-Flow
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of I-Flow
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of I-Flow Delaware are fully authorized in the name and
on behalf of I-Flow California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
4.3 Abandonment. At any time before the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, this Agreement may be terminated and the Merger may be abandoned for
any reason whatsoever by the Board of Directors of either I-Flow California or
I-Flow Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of I-Flow California or by the sole stockholder of I-Flow Delaware,
or by both.
4.4 Amendment. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of California and Delaware, provided that an amendment made subsequent to
the adoption of this Agreement by the shareholders of either Constituent
Corporation shall not: (1) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation, (2) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger, or (3)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class of shares
or series thereof of such Constituent Corporation.
4.5 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 0 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxxx 00000, County of Kent, and National Registered Agents, Inc. is
the registered agent of the Surviving Corporation at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation, 00000 Xxxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, and copies thereof will be furnished to
any shareholder of either Constituent Corporation, upon request and without
cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of I-Flow Delaware and I-Flow California,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
I-FLOW CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Dal Porto
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Xxxxx X. Dal Porto,
Assistant Secretary
I-FLOW CORPORATION,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Dal Porto
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Xxxxx X. Dal Porto,
Assistant Secretary
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