Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of September 30, 1999 (this
"Agreement"), by and among Oakridge Outpatient Center, Inc., a Florida
corporation ("Parent"), OH Acquisition Corp., a Florida corporation (the
"Disappearing Corporation"), OH, Inc., a Florida corporation ("OHI"), and Seal
Holdings Corporation, a Delaware corporation and the sole shareholder of OHI
("Seal").
W I T N E S S E T H:
WHEREAS, the Board of Directors of Parent, Seal and OHI have determined
that the merger of the Disappearing Corporation with and into OHI (the "Merger")
is consistent with and in furtherance of the long-term business strategy of each
of Parent, Seal, and OHI and is fair to, and in the best interests of Parent,
Seal, OHI and their respective stockholders.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
THE MERGER
SECTION I.1 The Merger. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time (as defined in Section 1.2)
and in accordance with the Florida Business Corporation Act, as amended (the
"FBCA"), the Disappearing Corporation shall be merged with and into OHI and the
separate existence of the Disappearing Corporation shall thereupon cease. OHI
shall be the surviving company in the Merger and is hereinafter sometimes
referred to as the "Surviving Company."
SECTION I.2 Effective Time of the Merger. The Merger shall
become effective at such time (the "Effective Time") as shall be stated in (i)
the Articles of Merger, in the form attached as Exhibit 1.2, to be filed with
the Secretary of State of the State of Florida in accordance with Section
607.224 of the FBCA (the "Merger Filing"). The Merger Filing shall be made
simultaneously with or as soon as practicable after the Closing (as defined in
Section 3.3).
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ARTICLE II
THE SURVIVING COMPANY
SECTION II.1 Articles of Incorporation. The Articles of
Incorporation of OHI in effect immediately prior to the Effective Time shall be
the Articles of Incorporation of the Surviving Company.
SECTION II.2 Bylaws. The Bylaws of OHI in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving Company.
SECTION II.3 Directors. The directors of the Disappearing
Corporation immediately prior to the Effective Time shall be the directors of
the Surviving Company, and such directors shall serve in accordance with the
Bylaws of the Surviving Company until their successors are duly elected or
appointed and qualified.
SECTION II.4 Officers. The officers of the Surviving Company
shall be as designated in Schedule 2.4 hereto, and such officers shall serve in
accordance with the Bylaws of the Surviving Company until their respective
successors are duly elected or appointed and qualified.
ARTICLE III
CONVERSION OF SHARES
SECTION III.1 Conversion of OHI Common Stock and the
Disappearing Corporation Common Stock in the Merger.
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(a) At the Effective Time, by virtue of the Merger and without any action
on the part of the sole holder of shares of common stock, par value $.001 per
share, of OHI ("OHI Common Stock"), the shares of OHI Common Stock issued and
outstanding immediately prior to the Effective Time shall be canceled and shall
thereafter represent, in the aggregate, Seal's right to receive, as the sole
holder of OHI Common Stock, (i) One Dollar and No Cents ($1.00) and (ii)
seventy-nine percent (79%) of the "Adjusted Proceeds" (as hereinafter defined)
as and when actually received by the Parent, the Surviving Company or any of
their respective subsidiaries after the Effective Time in settlement of, or
awarded as damages (including, without limitation, any compensatory,
consequential, incidental or punitive damages) arising from or relating to, any
claim, proceeding, action or litigation hereafter asserted by or on behalf of
the Surviving Company or any of its subsidiaries against any person or entity
relating in whole or in part to any claims of unfair competition or trade
practices, anti-competitive conduct, interference or other tortious conduct
(together with any claims incidental thereto) which OHI or any of its
subsidiaries may have suffered or experienced prior to the Effective Time (a
"Claim" and together with the One Dollar, the "Merger Consideration"). The
parties acknowledge and agree that (i) the Merger Consideration constitutes
adequate, fair and valuable consideration and (ii) Seal has obtained an opinion
of an investment banker to the effect that the transactions contemplated by this
Agreement are fair to the stockholders of Seal from a financial point of view.
Seal acknowledges that on or about the Effective Time the Surviving Company
intends to enter into a Loan Agreement ("Loan Agreement") with Broward Holdings
Corp., a Delaware corporation ("BHC"), whereby in exchange for certain
consideration from BHC to the Surviving Company, BHC will have the right to
control and direct all aspects of any Claim and to receive certain of any
proceeds from such a Claim. The term "Adjusted Proceeds" shall mean the gross
amounts received by the Surviving Company, its subsidiaries, or any of their
respective successors or assigns in settlement and/or awarded and received as
damages less (A) all costs and expenses (including attorneys fees and
disbursements) incurred directly or indirectly by, or on behalf of, BHC, the
Surviving Company (or any of their respective Affiliates) in connection with any
such Claim (the "Litigation Expenses"), (B) the amount of any damage or award
required to be paid by, or on behalf of, BHC, the Surviving Company, or any of
their respective Affiliates, to any third person or entity named as a defendant
(or who is an Affiliate of such defendant) in any Claim arising out of matters
reasonably related to such Claim, (C) the aggregate amount of all loans, capital
contributions or other funds advanced, loaned or similarly expended by any
Affiliate of Seal or BHC from April 2, 1999 through the Effective Time to OHI or
its subsidiaries, and/or, after the Effective Time, to the Surviving Company,
Parent or any of their respective subsidiaries (including without limitation
amounts funded by BHC pursuant to the Loan Agreement and all amounts paid on
account of any letter of credit or similar credit support outstanding on the
Effective Time relating to the obligations of OHI, the Surviving Company, Parent
or any of their respective subsidiaries, (D) the aggregate amount of accrued
rent payable by OHI or any of its subsidiaries for the period from March 1998
through the Effective Time to any Affiliates of OHI or such subsidiaries, and
(E) five (5) percent of the first Twenty Million ($20,000,000) Dollars of
litigation and/or Settlement Proceeds in excess of the Litigation Expenses. For
purposes of this Section 3.1, "Affiliate" shall mean a person or entity,
directly or indirectly, controlling, controlled by, or under common control
with, another person or entity. Nothing in this Section 3.1 shall (i) obligate
BHC, the Surviving Company or any successor or assign to assert any Claim, bring
any proceeding, action or litigation with respect to a Claim, or obtain or
maximize any recovery on a Claim, nor (ii) grant any rights to Seal with regard
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to the terms of settlement or litigation strategy with respect to any Claim
which may be asserted, all of which shall be in the sole and absolute discretion
of BHC, the Surviving Company or any of their respective successors or assigns.
(b) At the Effective Time, by virtue of the Merger and without any action
on the part of Parent or the Disappearing Corporation, each issued and
outstanding share of common stock, $.01 par value, of the Disappearing
Corporation ("Disappearing Corporation Common Stock") shall thereafter represent
one share of Common Stock of the Surviving Company.
SECTION III.2 Certificates.
(a) From and after the Effective Time, all OHI Common Stock outstanding
immediately prior to the Effective Time shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and the holder
of a certificate representing shares of OHI Common Stock shall cease to have any
rights with respect thereto, except the right to receive upon surrender thereof
to Parent, the Merger Consideration.
(b) From and after the Effective Time, all Disappearing Corporation Common
Stock outstanding immediately prior to the Effective Time shall be automatically
converted on a share-for-share basis into newly issued shares of the Common
Stock of the Surviving Company. The holder of a certificate representing shares
of Disappearing Corporation Common Stock shall have the right to surrender any
stock certificate issued by the Disappearing Corporation for a new stock
certificate to be issued by the Surviving Company.
(c) At the Closing (as hereinafter defined), Seal shall deliver to Parent
all certificates of OHI Common Stock, duly endorsed in blank, held by Seal that
immediately prior to the Effective Time represented all of the issued and
outstanding shares of OHI Common Stock, and Parent shall deliver to Seal the
Merger Consideration. The Parties acknowledge and agree that the Parent's and
Surviving Company's obligations regarding payment of 79% of any Adjusted
Proceeds from any Claim in accordance with Section 3.1(a) hereof shall survive
the Merger.
SECTION III.3 Closing. The closing (the "Closing") of the
transactions contemplated by this Agreement shall take place at the offices of
Proskauer Rose LLP, One Boca Place, 0000 Xxxxxx Xxxx, Xxxxx 000 Xxxx, Xxxx
Xxxxx, Xxxxxxx 00000, or at such other place as Parent, OHI and Seal shall
mutually agree, at 10:00 a.m., on September 30, 1999 (the "Closing Date"), or
such other date as Parent, OHI and Seal may mutually agree. Promptly following
the Closing, Seal shall turn over control of the books and records of OHI;
provided, however, that Seal shall have the right to make copies after Closing
of such books and records upon reasonable notice.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE
DISAPPEARING CORPORATION
Each of Parent and the Disappearing Corporation, jointly and severally,
represent and warrant to OHI and Seal as of the date hereof as follows:
SECTION IV.1 Corporate Organization, Etc. Each of Parent and
the Disappearing Corporation are corporations duly organized, validly existing
and in good standing under the laws of the state of their respective
incorporation and have the requisite power and authority to carry on their
respective business as it is now being conducted and to own, operate and lease
their respective properties and assets. Each of Parent and the Disappearing
Corporation are duly qualified and licensed to do business and are in good
standing in every jurisdiction in which the conduct of their respective
business, the ownership or lease of their respective properties require them to
be so qualified or licensed, except where the failure to be so qualified or
licensed would not have a material adverse effect on their respective business,
operations, properties, assets, condition (financial or otherwise) or results of
operations. True, accurate and complete copies of each of Parent's and the
Disappearing Corporation's respective Articles of Incorporation and Bylaws, in
each case as in effect on the date hereof, including all amendments thereto,
have been delivered to Seal and OHI.
SECTION IV.2 Authorization, Etc. Each of Parent and the
Disappearing Corporation have full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement have been duly authorized by the
Board of Directors of each of Parent and the Disappearing Corporation and no
other proceedings on the part of Parent or the Disappearing Corporation are
necessary to authorize this Agreement. This Agreement constitutes a legal, valid
and binding obligation of each of Parent and the Disappearing Corporation,
enforceable against Parent and the Disappearing Corporation in accordance with
its terms, except that such enforcement may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally and (ii) general
equitable principles.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OHI AND SEAL
Each of OHI and Seal, jointly and severally, represent and warrant to
Parent and the Disappearing Corporation as of the date hereof as follows:
SECTION V.1 Authorization, Etc. Seal and OHI each have full
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement have been duly authorized by the Board of Directors of each of
Seal and OHI and no other proceedings on the part of Seal or OHI are necessary
to authorize this Agreement. This Agreement constitutes a legal, valid and
binding obligation of Seal and OHI, enforceable against Seal and OHI in
accordance with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and (ii)
general equitable principles.
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SECTION V.2 Corporate Organization, Etc.
(a) OHI is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and has the requisite
power and authority to carry on its business as it is now being conducted and to
own, operate and lease its properties and assets. OHI is duly qualified and
licensed to do business and is in good standing in every jurisdiction in which
the conduct of its business, the ownership or lease of its properties require it
to be so qualified or licensed, except where the failure to be so qualified or
licensed would not have a material adverse effect on its business, operations,
properties, assets, condition (financial or otherwise) or results of operations.
True, accurate and complete copies of Articles of Incorporation and Bylaws, in
each case as in effect on the date hereof, including all amendments thereto,
have been delivered to Parent and the Disappearing Corporation.
(b) Each direct and indirect subsidiary of OHI is duly incorporated or
organized, validly existing and in good standing under the laws of the state of
its organization and has the requisite power and authority to carry on its
business as it is now being conducted and to own, operate and lease its
properties and assets. Each subsidiary is duly qualified and licensed to do
business and is in good standing in every jurisdiction in which the conduct of
its business, the ownership or lease of its properties require it to be so
qualified or licensed, except where the failure to be so qualified or licensed
would not have a material adverse effect on its business, operations,
properties, assets, condition (financial or otherwise) or results of operations.
All of the outstanding shares of capital stock of each subsidiary, or membership
interests, in the case of subsidiary limited liability companies, of OHI are
duly authorized and validly issued, fully paid, non-assessable and are owned,
directly or indirectly, by OHI free and clear of any liens, claims or
encumbrances.
SECTION V.3 Capitalization. The authorized capital stock of
OHI consists of 50,000,000 shares of OHI Common Stock, of which 1,000 shares are
issued and outstanding as of the date hereof and 10,000,000 shares of preferred
stock, no shares of which are issued and outstanding as of the date hereof. All
of the issued and outstanding shares of OHI Common Stock are duly authorized and
validly issued and are fully paid, non-assessable and are owned of record and
beneficially by Seal.
SECTION V.4 Title to Shares. Seal has good and marketable
title to and is the lawful owner, of record and beneficially, of all of the
issued and outstanding capital stock of OHI. The OHI Common Stock is not subject
to any lien, claim, encumbrance or restriction of any type, kind or nature in
favor of any third party.
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ARTICLE VI
AGREEMENTS OF THE PARTIES
SECTION VI.1 Consultants. For a period of six (6) months from
the Effective Time, Seal agrees to make available to the Surviving Company, at
Seal's expense, the services of Xxxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxx (or such
other persons who may then provide similar functions to Seal) for consultation
from time to time upon reasonable notice. Such consultation may be either in
person, via telephone or other means. Unless otherwise agreed by Seal, such
consultation shall be limited to matters involving the historical operations and
books and records of OHI and its subsidiaries.
SECTION 6.2 Other Agreements with BHC. The parties acknowledge
that Parent and the Surviving Company are entering into a Loan Agreement with
BHC and certain other agreements with BHC and its Affiliates (collectively, the
"Other Agreements"). Parent and the Surviving Company acknowledge that Seal is
not a party to such Other Agreements and that Seal shall have no liability for
any breach of any of such Other Agreements.
ARTICLE VII
GENERAL PROVISIONS
SECTION VII.1 Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement, unless a
contrary intention appears, (i) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision, and (ii) reference to any
Article or Section means such Article or Section hereof. No provision of this
Agreement shall be interpreted or construed against any party hereto solely
because such party or its legal representative drafted such provision.
SECTION VII.2 Governing Law. This agreement shall be governed
in all respects, including validity, interpretation and effect, by the internal
laws of the state of Florida.
SECTION VII.3 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement. Each of the parties
agrees to accept and be bound by facsimile signatures hereto.
SECTION VII.4 Parties In Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to confer upon any other
person any rights or remedies of any nature whatsoever under or by reason of
this Agreement.
SECTION VII.5 Schedules and Exhibits. All Schedules and
Exhibits referred to in this Agreement shall be attached hereto and are
incorporated herein by reference.
SECTION VII.6 Amendment of Agreement. No amendments or
variations of the terms or conditions of this Agreement shall be valid unless
made in writing signed by all parties hereto.
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SECTION VII.7 Severability. If any term, provision, condition
or covenant of this Agreement or the application thereof to any party or
circumstances shall be held to be invalid or unenforceable to any extent in any
jurisdiction, then the remainder of this Agreement and the application of such
term, provision, condition or covenant in any other jurisdiction or to persons
or circumstances other than those as to whom or which it is held to be invalid
or unenforceable, shall not be affected thereby, and each term, provision,
condition and covenant of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
SECTION VII.8 Entire Agreement. This Agreement and any other
agreements between the parties dated the date hereof supersede any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the subject matter and contain all the covenants and agreements between the
parties with respect to the subject matter of this Agreement in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not included herein,
and that no other agreement, statement or promise not contained in this
Agreement or referred to herein shall be valid or binding. This Agreement
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and shall bind and inure to the benefit of the parties and their
respective successors, assigns, heirs and personal representatives, subject to
the restriction on assignment contained herein.
SECTION VII.9 Assignment. The parties hereto may not assign
any of their rights or obligations hereunder without obtaining the prior written
consent of the other parties hereto, which consent shall not be unreasonably
withheld.
SECTION VII.10 Notices. All notices, requests, demands and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand or mailed, first
class certified mail with postage paid or by overnight receipted courier
service:
If to Parent or the Disappearing Corporation, to:
0000 XX 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
or to such other person or address as Parent or the Disappearing Corporation
shall furnish by notice to Seal or OHI in writing.
If to Seal or OHI, to:
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
or to such other person or address as Seal or OHI shall furnish by notice to
Parent and the Disappearing Corporation in writing.
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SECTION VII.11 Expenses. Each party hereto shall bear its own
expenses, including, without limitation, legal fees and expenses, with respect
to this Agreement.
SECTION VII.12 Further Assurances. The parties hereby agree
from time to time to execute and deliver such further and other transfers,
assignments and documents and do all matters and things which may be convenient
or necessary to more effectively and completely carry out the intentions of this
Agreement.
* * * * *
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IN WITNESS WHEREOF, Parent, the Disappearing Corporation, OHI and Seal
have caused this Agreement to be signed on their behalf as of the date first
written above.
OAKRIDGE OUTPATIENT CENTER, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: CEO
-----------------------------
OH ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: CEO
-----------------------------
SEAL HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Vice President
-----------------------------
OH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Vice President
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The undersigned hereby join in this Agreement for the purpose of
acknowledging and agreeing to the terms of Sections 3.1(a), 3.2(a), 3.2(c) and
7.12 with regard to any Claims which may relate in whole or in part to the
undersigned subsidiaries of OHI and/or the Surviving Company.
OAKRIDGE AMBULATORY SURGERY, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
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OAKRIDGE CARDIAC CATHETERIZATION, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
-----------------------------
OAKRIDGE MEDICAL GROUP, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
-----------------------------
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OAKRIDGE REHABILITATION, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
-----------------------------
OAKRIDGE CLINICAL LABORATORY, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
-----------------------------
OAKRIDGE IMAGING, LLC
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
-----------------------------
COMPREHENSIVE OUTPATIENT CENTERS OF
FLORIDA, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: Manager
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