AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered
into as of the 20th day of May, 1997, in accordance with Section 252 of the
General Corporation Law of the State of Delaware, as amended, and RCW
23B.11.070, by and between New Physio Corporation, a Washington corporation
("Surviving Corporation"), and Physio-Control International Corporation, a
Delaware corporation ("Merging Corporation"). Surviving Corporation and
Merging Corporation are sometimes collectively referred to hereinafter as the
"Constituent Corporations."
RECITALS
A. The respective boards of directors of Merging Corporation and
Surviving Corporation have determined it in the best interest of each
respective Constituent Corporation to merge (the "Merger") Merging
Corporation with and into Surviving Corporation.
B. The board of directors of Merging Corporation recommended approval
of the Merger by the Merging Corporation shareholders and presented such
proposal to the shareholders at the 1997 annual meeting held on May 1, 1997,
and the shareholders approved such Merger at the meeting.
C. The Constituent Corporations now desire the Merger to be effected
pursuant to the terms and conditions of this Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto agree as follows:
1. GENERAL.
1.1 THE MERGER. On the Effective Date (as herein defined) of the
Merger, Merging Corporation shall be merged with and into Surviving Corporation
and the separate existence of Merging Corporation shall cease and Surviving
Corporation shall survive such Merger.
1.2 ARTICLES OF INCORPORATION AND BYLAWS. The Articles of
Incorporation of Surviving Corporation as in effect immediately prior to the
Effective Date shall be the Articles of
Incorporation of the Surviving Corporation, except that Article I of the
Articles of Incorporation of Surviving Corporation hereby is amended and
restated as follows:
The name of the corporation is Physio-Control International Corporation.
The By-laws of Surviving Corporation as in effect immediately prior to the
Effective Date shall be the By-laws of the surviving corporation.
1.3 DIRECTORS AND OFFICERS. The directors of Merging Corporation in
office on the Effective Date shall become the directors of the surviving
corporation, until their successors shall have been elected and qualified. The
officers of Merging Corporation in office on the Effective Date shall become the
officers of the surviving corporation, until their successors shall have been
elected and qualified.
1.4 PROPERTY AND LIABILITIES OF CONSTITUENT CORPORATIONS. On the
Effective Date, the separate existence of Merging Corporation shall cease and
Merging Corporation shall be merged into the surviving corporation. The
Surviving Corporation, from and after the Effective Date, shall possess all the
rights, privileges, powers and franchises of whatsoever nature and description,
of a public as well as of a private nature, and be subject to all the
restrictions, disabilities and duties of each of the Constituent Corporations;
all rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of and debts due to
either of the Constituent Corporations on whatever account as , well for stock
subscriptions as all other things in action or belonging to each of the
Constituent Corporations shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all other interests
shall be thereafter as effectually the property of the surviving corporation as
they were of the several and respective Constituent Corporations and the title
to any real estate vested by deed or otherwise in either of the Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger.
All rights of creditors and all liens upon the property of the Constituent
Corporations shall be preserved unimpaired, and all debts, liabilities and
duties of the Constituent Corporations thenceforth shall attach to the surviving
corporation, and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Any claim
existing or action or proceeding, whether civil, criminal or administrative
pending by or against either Constituent Corporation may be prosecuted to
judgment or decree as if the Merger had not taken place, or the surviving
corporation may be substituted in such action or proceeding.
1.5 FURTHER ASSURANCES. Merging Corporation agrees that, at any
time, or from time to time, as and when requested by the Surviving Corporation,
or by its successors and assigns, it will execute and deliver, or cause to be
executed and delivered in its name by its last acting officers, or by the
corresponding officers of the Surviving Corporation, all such conveyances,
assignments, transfers, deeds or other instruments, and will take or cause to be
taken such further or other action as the Surviving Corporation, its successors
or assigns may deem necessary or desirable in order to evidence the transfer,
vesting or devolution of any
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property, right, privilege or franchise or to vest or perfect in or confirm
to the Surviving Corporation, its successors and assigns, title to and
possession of all the property, rights, privileges, powers, franchises and
interests referred to in this Section 1 herein and otherwise to carry out the
intent and purposes hereof.
1.6 SHAREHOLDER APPROVAL. In order for the Merger to be effective, a
majority of the shareholders of the Merging Corporation entitled to vote thereon
must approve the Merger ("Shareholder Approval") at the 1997 Annual Meeting,
which Shareholder Approval was received on May 1, 1997.
1.7 EFFECTIVE DATE. With receipt of Shareholder Approval as provided
in Section 1.6 above, this Merger Agreement shall become effective at 4:59 p.m.
Pacific time on the later of (a) the day on which an executed counterpart of a
Certificate of Ownership and Merger is filed with the Secretary of State of the
State of Delaware in the manner required by the General Corporation Law of the
State of Delaware and (b) the day on which an executed counterpart of Articles
of Merger containing this Merger Agreement are filed with the Secretary of State
of Washington in the manner required by the Washington Business Corporation Act
or (c) a later specified effective date as set forth in the Articles of Merger
so filed with the Secretaries of State (the "Effective Date").
2. CAPITAL STOCK OF THE SURVIVING CORPORATION.
2.1 MERGING CORPORATION SHARES. Each share of the Common Stock of
Merging Corporation issued and outstanding immediately prior to the Effective
Date, upon the Effective Date, by virtue of the Merger and without any action on
the part of the holder thereof, shall be converted into one validly issued,
fully paid and non-assessable share of Common Stock of Surviving Corporation.
2.2 SURVIVING CORPORATION SHARES. On the Effective Date, by virtue
of the Merger and without any action on the part of the holder thereof, each
share of Common Stock of Surviving Corporation outstanding immediately prior
thereto shall be canceled and returned to the status of authorized but unissued
shares.
2.3 EXCHANGE OF STOCK CERTIFICATES. On and after the Effective Date,
the shareholders of Merging Corporation may surrender to Surviving Corporation
the certificate or certificates which represent shares of capital stock of
Merging Corporation to an agent designated by Surviving Corporation, and shall
thereupon be entitled to receive such number of shares of capital stock of
Surviving Corporation in accordance with this Section 2.
2.4 STOCK OPTIONS AND EXCHANGE RIGHTS. Pursuant to the provisions of
the Delaware General Corporation Law and the Washington Business Corporation
Act, Surviving Corporation shall (a) assume Merging Corporation's 1997 Amended
and Restated Stock and Incentive Agreement (the "1997 Plan"), Physio-Control
International Corporation Employee
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Share Purchase Plan (the "ESPP") and all obligations thereunder and stock
options issued pursuant thereto, and (b) reserve for issuance upon the
exercise of outstanding and future stock options granted pursuant to the 1997
Plan, and reserve for issuance shares subject to purchase under the ESPP, the
number of shares of Common Stock as set forth in each plan.
3. MISCELLANEOUS.
3.1 COUNTERPARTS. This Merger Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which taken together shall constitute one Merger Agreement.
IN WITNESS WHEREOF, the Constituent Corporations have executed this Merger
Agreement as of the date and year first above written.
MERGING CORPORATION:
Physio-Control International Corporation,
a Delaware corporation
/s/ V. Xxxx Xxxxxxxx
By______________________________________
V. Xxxx Xxxxxxxx
Secretary
SURVIVING CORPORATION:
New Physio Corporation,
a Washington corporation
/s/ V. Xxxx Xxxxxxxx
By______________________________________
V. Xxxx Xxxxxxxx
Secretary
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