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EXHIBIT 2
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Merger Agreement") is dated as of
March 21, 1997 by and between Xxxxxxxxx Medical Technology, Inc., a Delaware
Corporation ("DMT"), and Xxxxxxxxx Healthcare, Inc., an Ohio corporation
("DHI"). DMT and DHI are hereinafter sometimes collectively referred to as
the "Constituent Corporations."
RECITALS
A. The respective Boards of Directors of DMT and DHI have
determined that it is advisable and in the best interests of each of such
corporations that DHI merge with and into DMT upon the terms and subject to the
conditions herein provided.
B. The Board of Directors of DMT has by resolution duly adopted
and approved this Merger Agreement and directed that it be executed by the
undersigned officer.
C. The Board of Directors of DHI has by resolution duly adopted
and approved this Merger Agreement and directed that it be executed by the
undersigned officer.
AGREEMENT
In consideration of the mutual agreements herein contained, the
parties agree that DHI shall be merged with and into DMT and that the terms
and conditions of the merger, the mode of carrying the merger into effect, the
manner of converting the shares of DHI and certain other provisions relating
thereto shall be as hereinafter set forth.
SECTION 1. SURVIVING CORPORATION. Subject to the terms and
provisions of this Agreement, and in accordance with the Delaware General
Corporation Law ("DGCL") and the Ohio General Corporation Law ("OHGCL"), at the
Effective Time (as defined in Section 7 hereof) DHI shall be merged with and
into DMT (the "Merger"). DMT shall be the surviving corporation (hereinafter
sometimes called the "Surviving Corporation") of the Merger and shall continue
its corporate existence under the laws of the State of Delaware. At the
Effective Time, the separate corporate existence of DHI shall cease.
SECTION 2. EFFECT OF THE MERGER. At the Effective Time, the Merger
shall have the effects provided for herein and in Section 253 of the DGCL and
Section 1701.80 of the OHGCL.
SECTION 3. CERTIFICATE OF INCORPORATION. As of the Effective Time,
Article FIRST of the Certificate of Incorporation of DMT, as in effect
immediately prior to the Effective Time, shall be amended to read in its
entirety as follows:
FIRST: The name of the corporation is Cross Medical Products, Inc.
SECTION 4. REGULATIONS. As of the Effective Time, the By-laws of
DMT, as in effect immediately prior to the Effective Time, shall continue to be
the By-laws of the Surviving
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Corporation until thereafter duly altered, amended, or repealed in accordance
with the provisions thereof, the Certificate of Incorporation of the Surviving
Corporation, and applicable law.
SECTION 5. DIRECTORS OF THE SURVIVING CORPORATION. At the Effective
Time, each person who is a director of DMT immediately prior to the Effective
Time shall become a director of the Surviving Corporation and each such person
shall serve as a director of the Surviving Corporation for the balance of the
term for which such person was elected a director of DMT and until his
successor is duly elected and qualified in the manner provided in the By-laws
or the Certificate of Incorporation of the Surviving Corporation or as
otherwise provided by law or until his earlier death, resignation, or removal
in the manner provided in the By-laws or the Certificate of Incorporation of
the Surviving Corporation or as otherwise provided by law.
SECTION 6. OFFICERS OF THE SURVIVING CORPORATION. At the Effective
Time, each person who is an officer of DMT immediately prior to the Effective
Time shall become an officer of the Surviving Corporation with each such person
to hold the same office in the Surviving Corporation, in accordance with the
By-laws thereof, as he held in DMT immediately prior to the Effective Time.
SECTION 7. EFFECTIVE TIME. The Merger shall become effective, in
accordance with the applicable provisions of Section 253 of the DGCL and
Section 1701.80 of the OHGCL on March 21, 1997. The date when the Merger
shall become effective is herein referred to as the "Effective Time."
SECTION 8. ADDITIONAL ACTIONS. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary or desirable
(a) to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to and possession of any property or right of DHI acquired
or to be acquired by reason of, or as a result of, the Merger, or (b) otherwise
to carry out the purpose of this Merger Agreement, DHI and its proper officers
and directors shall be deemed to have granted hereby to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
proper deeds, assignments and assurances in law and to do all acts necessary or
proper to vest, perfect or confirm title to and the possession of such property
or rights in the Surviving Corporation and otherwise to carry out the purposes
of this Merger Agreement; and the proper officers and directors of the
Surviving Corporation are hereby fully authorized in the name of DHI or
otherwise to take any and all such action.
SECTION 9. CONVERSION OF SHARES. At the Effective Time, each share
of common stock of DHI, 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, retired, and shall cease to exist,
and no common stock of DMT will be issued in respect thereof.
SECTION 10. NO CHANGE TO DMT SHARES. At the Effective Time, each
share of common stock of DMT, issued and outstanding immediately prior to the
Effective Time, shall remain issued and outstanding without any change by
virtue of the Merger.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXXXXX MEDICAL TECHNOLOGY, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Vice-President
XXXXXXXXX HEALTHCARE, INC.
an Ohio corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Vice-President
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