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EXHIBIT 2.1
MERGER AGREEMENT
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MERGER AGREEMENT
AMONG
THE XXXXX-XXXXXXX HEALTH SERVICES CORPORATION,
XXXXX-XXXXXXX ACQUISITION, INC.
AND
XXXXX-XXXXXXX DIAGNOSTICS COMPANY
SEPTEMBER 25, 1998
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TABLE OF CONTENTS
1. Definitions.................................................................1
(a) "Buyer-owned Share" ....................................................1
(b) "Dissenting Share" .....................................................1
(c) "Ohio General Corporation Law" .........................................1
(d) "Person" ...............................................................1
(e) "Preferred Shares" .....................................................1
(f) "Prospectus" ...........................................................1
(g) "Requisite Stockholder Approval" .......................................1
(h) "SEC" ..................................................................1
(i) "Securities Act" .......................................................1
(j) "Securities Exchange Act" ..............................................2
(k) "Target Share" .........................................................2
(l) "Target Stockholder" ...................................................2
2. Basic Transaction...........................................................2
(a) The Merger..............................................................2
(b) Closing.................................................................2
(c) Actions at the Closing..................................................2
(d) Effect of Merger........................................................2
(i) General. .........................................................2
(ii) Articles of Incorporation. .......................................2
(iii) Code of Regulations. .............................................3
(iv) Directors and Officers. ..........................................3
(v) Conversion of Target Shares. .....................................3
(vi) Conversion of Capital Stock of the Transitory Subsidiary. ........3
(e) Procedure for Payment...................................................3
(f) Closing of Transfer Records. ...........................................4
3. Covenants. .................................................................4
(a) General. ...............................................................4
(b) Notices and Consents. ..................................................4
(c) Regulatory Matters and Approvals. ......................................4
(i) Securities Act, Securities Exchange Act, and State
Securities Laws. .............................................4
(ii) Ohio General Corporation Law. .................................4
4. Conditions to Obligation to Close...........................................5
(a) Conditions to Obligation of the Buyer and the Transitory Subsidiary.
.......................................................................5
(b) Conditions to Obligation of the Target. ................................5
5. Termination. ...............................................................6
(a) Termination of Agreement. ..............................................6
(b) Effect of Termination. .................................................6
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6. Miscellaneous...............................................................6
(a) No Third-Party Beneficiaries. ..........................................6
(b) Entire Agreement. ......................................................6
(c) Succession and Assignment. .............................................6
(d) Counterparts. ..........................................................6
(e) Headings. ..............................................................6
(f) Notices. ...............................................................7
(g) Governing Law. .........................................................7
(h) Amendments and Waivers. ................................................7
(i) Severability. ..........................................................8
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MERGER AGREEMENT
This Agreement is entered into effective the 25th day of September,
1998, by and among The Xxxxx-Xxxxxxx Health Services Corporation, a Delaware
corporation ( "BUYER"), Xxxxx-Xxxxxxx Acquisition, Inc., an Ohio corporation and
a wholly-owned Subsidiary of the Buyer ("TRANSITORY SUBSIDIARY"), and
Xxxxx-Xxxxxxx Diagnostics Company, an Ohio corporation ("TARGET"). Buyer,
Transitory Subsidiary, and Target are referred to collectively herein as the
"PARTIES."
This Agreement contemplates a transaction in which the Buyer ( or its
wholly owned Subsidiary) will acquire all of the outstanding capital stock of
the Target for the Preferred Shares through a reverse subsidiary merger of the
Transitory Subsidiary with and into the Target.
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
(a) "BUYER-OWNED SHARE" means any Target Share that the Buyer
or the Transitory Subsidiary owns beneficially.
(b) "DISSENTING SHARE" means any Target Share which any
stockholder who or which has exercised his or its appraisal rights under the
Ohio General Corporation Law holds of record.
(c) "OHIO GENERAL CORPORATION LAW" means the General
Corporation Law of the State of Ohio, as amended.
(d) "PERSON" means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
(e) "PREFERRED SHARES" means The Series 1 preferred shares of
the Buyer.
(f) "PROSPECTUS" means the final prospectus relating to the
registration of the Preferred Shares under the Securities Act.
(g) "REQUISITE STOCKHOLDER APPROVAL" means the affirmative
vote of the holders of a majority of the Target Shares in favor of this
Agreement and the Merger.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(j) "SECURITIES EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended.
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(k) "TARGET SHARE" means any share of the Common Stock of the
Target.
(l) "TARGET STOCKHOLDER" means any Person who or which holds
any Target Shares.
2. BASIC TRANSACTION.
(a) THE MERGER. On and subject to the terms and conditions of
this Agreement, Transitory Subsidiary will merge with and into the Target
("MERGER") at the Effective Time. The Target shall be the corporation surviving
the Merger ("SURVIVING CORPORATION").
(b) CLOSING. The closing of the transactions contemplated by
this Agreement ("CLOSING") shall take place at the offices of Schottenstein, Zox
& Xxxx Co., L.P.A. in Columbus, Ohio, commencing at 9:00 a.m. local time on the
second business day following the satisfaction or waiver of all conditions to
the obligations of the Parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective Parties
will take at the Closing itself) or such other date as the Parties may mutually
determine ("CLOSING DATE").
(c) ACTIONS AT THE CLOSING. At the Closing, (i) Target and
Transitory Subsidiary will file with the Secretary of State of the State of Ohio
a Certificate of Merger ("CERTIFICATE OF MERGER"), and (ii) the Buyer will cause
the Surviving Corporation to deliver the Preferred Shares to the Exchange Agent
in the manner provided below in this Section 2.
(d) EFFECT OF MERGER.
(i) GENERAL. The Merger shall become effective at the
time ("EFFECTIVE TIME") the Target and the Transitory Subsidiary file
the Certificate of Merger with the Secretary of State of the State of
Ohio. The Merger shall have the effect set forth in the Ohio General
Corporation Law. The Surviving Corporation may, at any time after the
Effective Time, take any action (including executing and delivering any
document) in the name and on behalf of either the Target or the
Transitory Subsidiary in order to carry out and effectuate the
transactions contemplated by this Agreement.
(ii) ARTICLES OF INCORPORATION. The Articles of
Incorporation of the Surviving Corporation as in effect immediately
prior to the Effective Time shall remain unchanged.
(iii) CODE OF REGULATIONS. The Code of Regulations of
the Surviving Corporation as in effect immediately prior to the
Effective Time shall remain unchanged.
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(iv) DIRECTORS AND OFFICERS. The directors and
officers of Target shall continue as the directors and officers of the
Surviving Corporation at and as of the Effective Time (retaining their
respective positions and terms of office).
(v) CONVERSION OF TARGET SHARES. At and as of the
Effective Time, (A) the Target Stockholders (other than any Dissenting
Share or Buyer-owned Share) shall have the right to receive 1 Preferred
Share ("Conversion Ratio") for each four (4) Target Shares (the "Merger
Consideration"), (B) each Dissenting Share shall be converted into the
right to receive payment from the Surviving Corporation with respect
thereto in accordance with the provisions of the Ohio General
Corporation Law, and (C) each Buyer-owned Share shall be cancelled;
provided, however, that the Merger Consideration shall be subject to
equitable adjustment in the event of any stock split, stock dividend,
reverse stock split, or other change in the number of Target Shares
outstanding. No Target Share shall be deemed to be outstanding or to
have any rights other than those set forth above in this Section
2(d)(v) after the Effective Time. No fractional Preferred Shares shall
be issued and, in lieu thereof, cash shall be paid to such Target
Stockholders at the rate of $5.00 per Target Share.
(vi) CONVERSION OF CAPITAL STOCK OF THE TRANSITORY
SUBSIDIARY. At and as of the Effective Time, each share of Common Stock
of the Transitory Subsidiary shall be cancelled.
(e) PROCEDURE FOR PAYMENT.
(i) Immediately after the Effective Time, (A) the
Buyer will furnish to an exchange agent selected by it ("EXCHANGE
AGENT") a stock certificate (issued in the name of the Exchange Agent
or its nominee) representing that number of Preferred Shares equal to
the product of (I) the Conversion Ratio times (II) the number of
outstanding Target Shares (other than any Dissenting Shares and
Buyer-owned Shares) and (B) the Buyer will mail a letter of transmittal
(with instructions for its use) each record holder of outstanding
Target Shares for the holder to use in surrendering the certificates
which represented his or its Target Shares in exchange for a
certificate representing the number of Buyer Shares to which he or it
is entitled.
(ii) The Buyer will not pay any dividend or make any
distribution on Buyer Shares (with a record date at or after the
Effective Time) to any record holder of outstanding Target Shares until
the holder surrenders for exchange his or its certificates which
represented Target Shares. The Buyer instead will pay the dividend or
make the distribution to the Exchange Agent in trust for the benefit of
the holder pending surrender and exchange.
(iii) The Buyer may cause the Exchange Agent to
return any Buyer Shares and dividends and distributions thereon
remaining unclaimed 180 days after
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the Effective Time, and thereafter each remaining record holder of
outstanding Target Shares shall be entitled to look to the Buyer
(subject to abandoned property, escheat, and other similar laws) as a
general creditor thereof with respect to the Buyer Shares and dividends
and distributions thereon to which he or it is entitled upon surrender
of his or its certificates.
(f) CLOSING OF TRANSFER RECORDS. After the close of business
on the Closing Date, transfers of Target Shares outstanding prior to the
Effective Time shall not be made on the stock transfer books of the Surviving
Corporation.
3. COVENANTS. The Parties agree as follows with respect to the period
from and after the execution of this Agreement.
(a) GENERAL. Each of the Parties will use its reasonable
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in Section 4 below).
(b) NOTICES AND CONSENTS. The Target will give any notices to
third parties, and will use its reasonable efforts to obtain any third party
consents, that the Buyer reasonably may request.
(c) REGULATORY MATTERS AND APPROVALS. Each of the Parties will
give any notices to, make any filings with, and use its reasonable efforts to
obtain any authorizations, consents, and approvals of governments and
governmental agencies. Without limiting the generality of the foregoing:
(i) FEDERAL AND STATE SECURITIES LAWS. The Buyer will
prepare and file with the SEC a registration statement under the
Securities Act relating to the offering and issuance of the Preferred
Shares (the "REGISTRATION STATEMENT") and may make certain associated
filings as may be required under state law. The filing Party in each
instance will use its reasonable efforts to respond to the comments of
the SEC or state securities agency, as the case may be, thereon and
will make any further filings (including amendments and supplements) in
connection therewith that may be necessary, proper, or advisable.
(ii) OHIO GENERAL CORPORATION LAW. The Target will
call a special meeting of its stockholders (the "SPECIAL MEETING"), as
soon as reasonably practicable in order that the stockholders may
consider and vote upon the adoption of this Agreement and the approval
of the Merger in accordance with the Ohio General Corporation Law.
4. CONDITIONS TO OBLIGATION TO CLOSE.
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(a) CONDITIONS TO OBLIGATION OF THE BUYER AND THE TRANSITORY
SUBSIDIARY. The obligation of each of the Buyer and the Transitory Subsidiary to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the Registration Statement shall have become
effective under the Securities Act;
(ii) all actions to be taken by the Target in
connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer and the
Transitory Subsidiary.
The Buyer and the Transitory Subsidiary may waive any condition
specified in this Section 4(a) if they execute a writing so stating at or prior
to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE TARGET. The obligation of
the Target to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the Registration Statement shall have become
effective under the Securities Act;
(ii) this Agreement and the Merger shall have
received the Requisite Stockholder Approval; and
(iii) all actions to be taken by the Buyer and the
Transitory Subsidiary in connection with consummation of the
transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and
substance to the Target.
The Target may waive any condition specified in this Section 4(b) if it
executes a writing so stating at or prior to the Closing.
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5. TERMINATION.
(a) TERMINATION OF AGREEMENT. Any of the Parties may terminate
this Agreement with the prior authorization of its board of directors (whether
before or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by
mutual written consent at any time prior to the Effective Time; or
(ii) any Party may terminate this Agreement by giving
written notice to the other Parties at any time after the Special
Meeting in the event this Agreement and the Merger fail to receive the
Requisite Stockholder Approval.
(b) EFFECT OF TERMINATION. If any Party terminates this
Agreement pursuant to Section 5(a) above, all rights and obligations of the
Parties hereunder shall terminate without any liability of any Party to any
other Party (except for any liability of any Party then in breach).
6. MISCELLANEOUS.
(a) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns; provided, however, that the
provisions in Section 2 above concerning payment of the Merger Consideration are
intended for the benefit of the Target Stockholders.
(b) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(c) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Parties.
(d) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other
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communication hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Target: Xxxxx-Xxxxxxx Diagnostics Company
Two Nationwide Plaza
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Gold, President
If to the Buyer: The Xxxxx-Xxxxxxx Health Services Corporation
Two Nationwide Plaza
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Gold, President
If to the Transitory Xxxxx-Xxxxxxx Acquisition, Inc.
Subsidiary: Two Nationwide Plaza
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Gold, President
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Ohio without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Ohio or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Ohio.
(h) AMENDMENTS AND WAIVERS. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Ohio General Corporation Law. No amendment
of any provision of this Agreement shall be valid unless the same shall be in
writing and signed by all of the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default,
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misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such occurrence.
(i) SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective the date first above written.
THE XXXXX-XXXXXXX HEALTH SERVICES
CORPORATION
By: /s/ Xxxxxxx X. Gold
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Xxxxxxx X. Gold, President
XXXXX-XXXXXXX ACQUISITION, INC.
By: /s/ Xxxxxxx X. Gold
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Xxxxxxx X. Gold, President
XXXXX-XXXXXXX DIAGNOSTICS COMPANY
By: /s/ Xxxxxxx X. Gold
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Xxxxxxx X. Gold, President
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