Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT OF MERGER (the "Agreement"), dated as of December 22,
1998, is entered into by and between INAMED Corporation, a Florida corporation
("INAMED Florida") and INAMED Corporation (Delaware), a Delaware corporation
("INAMED Delaware").
WITNESSETH:
WHEREAS, INAMED Florida is a corporation duly organized and existing
under the laws of the State of Florida;
WHEREAS, the respective Boards of Directors of INAMED Florida and
INAMED Delaware have determined that it is advisable and in the best interests
of each of such corporations that INAMED Florida merge with and into INAMED
Delaware (the "Merger") upon the terms and subject to the conditions set forth
in this Agreement for the purpose of effecting the change of the state of
incorporation of INAMED Florida from Florida to Delaware;
WHEREAS, the respective Boards of Directors of INAMED Florida and
INAMED Delaware have, by resolutions duly adopted, approved this Agreement,
subject to the approval of the shareholders of each of INAMED Delaware and
INAMED Florida; and
WHEREAS, this Agreement is intended as a tax free plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, INAMED Florida and INAMED Delaware hereby agree as
follows:
1. MERGER. INAMED Florida shall be merged with and into INAMED
Delaware and INAMED Delaware shall be the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation"). The Merger shall become
effective upon the date and time when this Agreement is made effective in
accordance with applicable law (the "Effective Time").
2. GOVERNING DOCUMENTS; EXECUTIVE OFFICERS AND DIRECTORS. The
Certificate of Incorporation of INAMED Delaware, from and after the Effective
Time, shall be the Certificate of Incorporation of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof and applicable laws. The Bylaws of INAMED Delaware from and
after the Effective Time, shall be the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof, or the Certificate of Incorporation of the Surviving
Corporation and applicable laws. The executive officers, directors and members
of committees of the Board of Directors of INAMED Delaware, as of the Effective
Time, shall become the executive officers, directors and members of committees
of the Board of Directors of the Surviving Corporation, from and after the
Effective Time, until their respective successors have been duly elected and
qualify, unless they earlier die, resign or are removed.
3. SUCCESSION. At the Effective Time, the separate corporate
existence of INAMED Florida shall cease, and INAMED Delaware shall possess all
the rights, privileges, powers and franchises of a public and private nature of
INAMED Florida; and all property, real, personal and mixed, and all debts due to
INAMED on whatever account, as well as for share subscriptions as all other
things in action belonging to INAMED Florida, shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and franchises, and
all and every interest shall be thereafter as effectually the property of the
Surviving Corporation as they were of INAMED Florida, and the title to any real
estate vested by deed or otherwise in INAMED Florida shall not revert or be in
any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of INAMED Florida shall be preserved unimpaired, and all
debts, liabilities and duties of INAMED Florida shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as if
such debts, liabilities and duties had been incurred or contracted by it. All
corporate acts, plans, policies, agreements, arrangements, approvals and
authorizations of INAMED Florida its shareholders, Board of Directors and
committees thereof,
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officers and agents which were valid and effective immediately prior to the
Effective Time, shall be taken for all purposes as the acts, plans, policies,
agreements, approvals and authorizations of the Surviving Corporation and shall
be as effective and binding thereon as the same were with respect to INAMED
Florida. The employees and agents of INAMED Florida shall become the employees
and agents of the Surviving Corporation and continue to be entitled to the same
rights and benefits which they enjoyed as employees and agents of INAMED
Florida. The requirements of any plans or agreements of INAMED Florida involving
the issuance or purchase by INAMED Florida of certain shares of its capital
stock shall be satisfied by the issuance or purchase of a like number of shares
of the Surviving Corporation.
4. FURTHER ASSURANCES. From time to time, as and when required by
the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of INAMED Florida such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate, advisable or necessary in
order to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of INAMED
Florida, and otherwise to carry out the purposes of this Agreement, and the
officers and directors of the Surviving Corporation are fully authorized in the
name and on behalf of INAMED Florida or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
5. CONVERSION OF SHARES. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof:
(a) each share of the common stock, par value $.01 per
share (the "INAMED Florida Common Stock") of INAMED Florida outstanding
immediately prior to the Effective Time shall be changed and converted into and
shall be one fully paid and nonassessable share of common stock, par value $.01
per share (the "INAMED Delaware Common Stock") of INAMED Delaware and no
fractional shares shall be issued and fractions of half or more shall be rounded
to a whole share and fractions of less than half shall be disregarded, such that
the issued and outstanding capital stock of INAMED Delaware resulting from the
conversion of the capital stock of INAMED Florida upon the Effective Time shall
be equal to the number of shares of Common Stock at that time; and
(b) As of the Effective Time, INAMED Delaware hereby
assumes all obligations under any and all employee benefit plans of INAMED
Florida in effect as of the Effective Time or with respect to which employee
rights or accrued benefits are outstanding as of the Effective Time and shall
continue the stock option plans of INAMED Florida. Each outstanding and
unexercised option, warrant or other right to purchase, or security convertible
into INAMED Florida Common Stock shall become an option, warrant 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 INAMED Florida Common Stock issuable pursuant to any such option,
warrant or stock purchase right or convertible security, on the same terms and
conditions and at an exercise or conversion price per share equal to the
exercise or conversion price per share applicable to any such INAMED Florida
option, warrant, stock purchase right or other convertible security at the
Effective Time.
A number of shares of the Surviving Corporation's Common
Stock shall be reserved for issuance upon the exercise of options, warrants,
stock purchase rights and convertible securities equal to the number of shares
of INAMED Florida Common Stock so reserved immediately prior to the Effective
Time.
(c) the shares of INAMED Delaware Common Stock presently
issued and outstanding in the name of INAMED Florida shall be canceled and
retired and resume the status of authorized and unissued shares of INAMED
Delaware Common Stock, and no shares of INAMED Delaware Common Stock or other
securities of INAMED Florida shall be issued in respect thereof.
6. STOCK CERTIFICATES. As of and after the Effective Time, all of
the outstanding certificates which, immediately prior to the Effective Time,
represented shares of INAMED Florida Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, shares of INAMED Delaware
Common Stock into which the shares of INAMED Florida Common Stock formerly
represented by such certificates, have been converted as herein provided. The
registered owner on the books and records of the Surviving Corporation or its
transfer agents of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to the Surviving Corporation or its transfer agents, have and be entitled to
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exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the shares of INAMED Delaware Common
Stock evidenced by such outstanding certificate as above provided.
7. SHAREHOLDER APPROVAL. This Agreement has been approved by INAMED
Florida under Section 607.1103 of the Florida Business Corporation Act by the
shareholders representing in excess of 50% of the issued and outstanding voting
securities of INAMED Florida. This Agreement has been approved by INAMED
Delaware under Section 253 of the General Corporation Law of the State of
Delaware. The signature of INAMED Florida on this Agreement shall constitute its
written consent as sole shareholder of INAMED Delaware, to this Agreement and
the Merger.
8. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, INAMED
Delaware hereby assumes all obligations under any and all employee benefit plans
of INAMED Florida in effect as of the Effective Time or with respect to which
employee rights or accrued benefits are outstanding as of the Effective Time.
9. AMENDMENT. To the full extent permitted by applicable law, this
Agreement may be amended, modified or supplemented by written agreement of the
parties hereto, either before or after approval of the shareholders of the
constituent corporations and at any time prior to the Effective Time with
respect to any of the terms contained herein.
10. ABANDONMENT. At any time prior to the Effective Time, this
Agreement may be terminated and the Merger may be abandoned by the Boards of
Directors of INAMED Florida or INAMED Delaware, notwithstanding approval of this
Agreement by the shareholders of INAMED Delaware or by the shareholders of
INAMED Florida, or both, if, in the opinion of either of the Boards of Directors
of INAMED Florida or INAMED Delaware, circumstances arise which in the opinion
of such Boards of Directors, make the Merger for any reason inadvisable.
11. COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in two or more counterparts, each of
which shall be deemed to be an original and the same agreement.
12. FLORIDA APPOINTMENT. INAMED Delaware hereby agrees that it may
be served with process in the State of Florida in any action or special
proceeding for enforcement of any liability or obligation of INAMED Florida or
INAMED Delaware arising from the Merger. INAMED Delaware appoints the Secretary
of State of the State of Florida as its agent to accept service of process in
any such suit or other proceeding and a copy of such process shall be mailed by
the Secretary of State of Florida to INAMED Delaware at 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, INAMED Florida and INAMED Delaware have caused
this Agreement to be executed and delivered at Las Vegas, Nevada by their
respective duly authorized officers as of the date first above written.
INAMED CORPORATION
a Florida corporation
By: /S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Chairman, Chief Executive Officer and President
INAMED CORPORATION (Delaware)
a Delaware corporation
By: /S/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Chairman, Chief Executive Officer and President
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