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Exhibit 2.1
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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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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.
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(j) "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(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.
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(iii) CODE OF REGULATIONS. The Code of Regulations of the Surviving
Corporation as in effect immediately prior to the Effective Time shall
remain unchanged.
(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
Section2(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
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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 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
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of this Agreement and the approval of the Merger in accordance with the
Ohio General Corporation Law.
4. CONDITIONS TO OBLIGATION TO CLOSE.
(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.
5. TERMINATION.
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(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 Section5(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 communication hereunder shall be deemed duly given if (and then two
business days after)
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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, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any
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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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