EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER OF
MERGER SUB
WITH AND INTO COMPANY
AGREEMENT AND PLAN OF MERGER ("Plan of Merger") dated as of March 22,
2002, by and between SPACELABS MEDICAL, INC. ("Company"), a Delaware corporation
having its principal executive office at ▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, and BOXER ACQUISTION CORP. ("Merger Sub"), a Delaware corporation
having its principal executive office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇, FIN-00031 INSTRUMENTARIUM, and joined in by INSTRUMENTARIUM CORPORATION
("Buyer"), a Finnish corporation, having its principal executive office at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, FIN-00031 INSTRUMENTARIUM.
WITNESSETH
WHEREAS, the respective Boards of Directors of the Company, Merger Sub
and Buyer deem the merger of Merger Sub with and into the Company, under and
pursuant to the terms and conditions herein set forth or referred to, desirable
and in the best interests of the respective corporations and their respective
stockholders, and the respective Boards of Directors of the Company, Merger Sub
and Buyer have adopted resolutions approving this Plan of Merger and an
Agreement and Plan of Reorganization dated of even date herewith
("Reorganization Agreement");
WHEREAS, the parties hereto desire that the Company shall be acquired by
Buyer through the merger of Merger Sub with and into the Company, with the
Company as the surviving corporation, subject to the terms and conditions of
this Plan of Merger and the Reorganization Agreement; and
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree as follows:
Article 1.
MERGER; EFFECT OF MERGER
Subject to the terms and conditions of this Plan of Merger, at the
Effective Time (as hereinafter defined), Merger Sub shall be merged with and
into the Company, pursuant to the provisions of, and with the effect provided
in, Sections 259 through 261 of the Delaware General Corporation Law (said
transaction being hereinafter referred to as the "Merger"). As a result of the
Merger, at the Effective Time, the separate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation").
At the Effective Time, the effect of the Merger shall be as provided in
the applicable provisions of the Delaware General Corporation Law. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property,
rights, privileges, powers and franchises of the Company and Merger Sub shall
vest in the Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of each of the Company and Merger Sub
shall become the debts, liabilities, obligations, restrictions, disabilities and
duties of the Surviving Corporation.
Article 2.
CERTIFICATE OF INCORPORATION AND BY-LAWS
At the Effective Time, the Certificate of Incorporation and the By-Laws
of Merger Sub, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation and the Bylaws of the Surviving Corporation,
until amended as provided by law, such Certificate of Incorporation and such
Bylaws; provided, however, that, at the Effective Time, Article I of the
Certificate of Incorporation of the Surviving Corporation shall be amended to
read as follows: "The name of the corporation is Spacelabs Medical, Inc."
Article 3.
BOARD OF DIRECTORS AND OFFICERS
The directors of Merger Sub immediately prior to the Effective Time
shall be the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be. The officers of the Company immediately prior to
the Effective Time shall be the officers of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly appointed and qualified, as the case may be.
Article 4.
CAPITAL
At the Effective Time, by virtue of the Merger and without any action on
the part of Merger Sub or the Company, each share of common stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one validly issued, fully paid and
non-assessable share of common stock of the Surviving Corporation.
Article 5.
CONVERSION AND EXCHANGE OF COMPANY
SHARES; FRACTIONAL SHARE INTERESTS
5.1 At the Effective Time, by virtue of the Merger and without any
action on the part of Merger Sub or the Company, each share of the common stock
of the Company, par value $0.01 per share ("Company Common Stock"), issued and
outstanding immediately prior to the Effective Time (except as provided in
Sections 5.2 and 5.3), shall be cancelled and shall be converted automatically
into the right to receive $14.25 in cash (the "Merger Consideration"); provided,
however, that if the aggregate amount payable by the Company pursuant to Section
6(i) of the 1992 Plan and Section 6(h) of the 1993 Plan exceeds $850,000 (such
excess, the "Option Value Excess"), then
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the per share Merger Consideration payable pursuant to this Section 5.1 shall be
reduced by an amount equal to (i) the Option Value Excess divided by (ii) the
number of outstanding shares of Company Common Stock at the Effective Time.
5.2 At the Effective Time, by virtue of the Merger and without any
action on the part of Merger Sub or the Company, all shares of Company Common
Stock held in the treasury of the Company or owned beneficially by any
subsidiary of the Company immediately prior to the Effective Time and all shares
of Company Common Stock owned by Buyer or owned beneficially by any subsidiary
of Buyer immediately prior to the Effective Time shall be canceled without any
conversion thereof and no cash, stock or other property shall be delivered in
exchange therefor.
5.3 Notwithstanding any other provisions contained in this Plan of
Merger and to the extent required by the Delaware General Corporation Law,
shares of Company Common Stock that are issued and outstanding immediately prior
to the Effective Time and that are held by a stockholder who shall have neither
voted in favor of the Merger nor consented thereto in writing and who shall have
demanded properly in writing appraisal for such Company Common Stock in
accordance with Section 262 of the Delaware General Corporation Law
(collectively, the "Dissenting Shares") shall not be converted into the right to
receive the Merger Consideration unless and until the holder shall have failed
to perfect, or who shall have effectively withdrawn or lost, his right to
appraisal of such shares under Section 262. If any such holder shall have failed
to perfect or who shall have effectively withdrawn or lost such holder's right
to appraisal of such shares under Section 262, each of such holder's shares of
Company Common Stock shall thereupon be deemed to have been converted into and
to have become, as of the Effective Time, the right to receive the Merger
Consideration, without interest thereon.
5.4 As of the Effective Time, Buyer shall deposit, or shall cause to be
deposited, with such bank or trust company as Buyer shall elect (the "Payment
Agent"), for the benefit of the holders of shares of Company Common Stock, for
payment in accordance with this Section 5.4, the Merger Consideration to be paid
pursuant to Section 5.1 and deposited pursuant to this Section 5.4 in exchange
for outstanding shares of Company Common Stock. As promptly as practicable after
the Effective Time, Buyer shall cause the Payment Agent to mail to each person
who was, at the Effective Time, a holder of record of a certificate previously
representing shares of Company Common Stock entitled to receive the Merger
Consideration (a "Certificate") the following: (i) a letter of transmittal which
shall be in a form and contain such provisions as Buyer and the Company may
determine specifying that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to the
Payment Agent; and (ii) instructions for use in effecting the surrender of the
Certificates in payment for the Merger Consideration. Upon the proper surrender
of a Certificate to the Payment Agent, together with a properly completed and
duly executed letter of transmittal, the holder of such Certificate shall be
entitled to receive in payment therefor a check representing the Merger
Consideration which such holder has the right to receive in respect of the
Certificate surrendered pursuant to the provisions hereof, and the Certificate
so surrendered shall forthwith be cancelled. No interest will be paid or accrued
on the Merger Consideration. In the event of a transfer of ownership of any
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shares of Company Common Stock not registered in the transfer records of the
Company, a check for the Merger Consideration may be issued to the transferee if
the Certificate representing such Company Common Stock is presented to the
Payment Agent, accompanied by documents sufficient, in the discretion of Buyer,
(i) to evidence and effect such transfer; and (ii) to evidence that all
applicable stock transfer taxes have been paid. Any portion of the aggregate
Merger Consideration or the proceeds of any investments thereof that remains
unclaimed by the stockholders of the Company for six months after the Effective
Time shall be delivered by the Payment Agent to Buyer. Any stockholders of the
Company who have not theretofore complied with this Section 5.4 shall thereafter
look only to Buyer for payment of the Merger Consideration deliverable in
respect of each share of Company Common Stock such stockholder holds as
determined pursuant to this Plan of Merger without any interest thereon. If
outstanding certificates for shares of Company Common Stock are not surrendered
or the payment for them not claimed prior to the date on which such payments
would otherwise escheat to or become the property of any governmental unit or
agency, the unclaimed items shall, to the extent permitted by abandoned property
and any other applicable law, become the property of Buyer (and to the extent
not in its possession shall be paid over to it), free and clear of all claims or
interest of any person previously entitled to such claims. Any other provision
of this Plan of Merger notwithstanding, neither Buyer or its agent nor any party
to the Merger shall be liable to a holder of Company Common Stock for any amount
paid or property delivered in good faith to a public official pursuant to any
applicable abandoned property, escheat or similar law. At the Effective Time,
the stock transfer books of Company shall be closed and no transfer of Company
Common Stock shall thereafter be made or recognized. If after the Effective Time
Certificates are presented to Buyer or the Surviving Corporation, they shall be
cancelled and exchanged for the Merger Consideration deliverable in respect
thereof pursuant to this Plan of Merger in accordance with the procedures set
forth in this Section 5.4. Until surrendered as contemplated by this Section
5.4, each Certificate shall be deemed at all times after the Effective Time to
represent only the right to receive upon such surrender the Merger
Consideration.
5.5 At the Effective Time, provided that a holder of a Company Option
having an exercise price of less than $14.25 (the "In-the-Money Options") shall
have consented to the surrender and cancellation of all Company Options held by
such option holder, all Company Options held by such option holder shall be
cancelled and such option holder shall, subject to the receipt by the Company of
such consent, be entitled to receive, in consideration for the cancellation of
all Company Options held by such option holder, an amount equal to the product
of (i) the number of shares of Company Common Stock subject to such In-the-Money
Options and (ii) the difference between $14.25 and the aggregate exercise price
of such In-the-Money Options. The Company shall use its reasonable efforts to
assist Buyer in Buyer's efforts to obtain the consents described above;
provided, that the Company shall not have any obligation to, and the Company
shall not, without the prior written approval of Buyer, provide any additional
consideration to, or enter into any other contract or agreement with, such
option holder in connection with such consent to the surrender and cancellation.
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5.6 In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by Buyer, the
posting by such person of a bond in such amount as Buyer may reasonably direct
as indemnity against any claim that may be made against it with respect to such
Certificate, Buyer or its agent will issue in exchange for such lost, stolen or
destroyed Certificate the Merger Consideration to which the holder of such
Certificate is entitled pursuant to Section 5.1.
5.7 Each of the Surviving Corporation, the Payment Agent and Buyer shall
be entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Plan of Merger to any holder of Company Common Stock such
amounts as it is required to deduct and withhold with respect to the making of
such payment under the Internal Revenue Code of 1986, as amended, or any
provision of state, local or foreign tax law. To the extent that amounts are so
withheld by the Surviving Corporation, the Payment Agent or Buyer, as the case
may be, such withheld amounts shall be treated for all purposes of this Plan of
Merger as having been paid to the holder of the Company Common Stock in respect
of which such deduction and withholding was made by the Surviving Corporation,
the Payment Agent or Buyer, as the case may be.
Article 6.
EFFECTIVE TIME OF THE MERGER
A certificate of merger evidencing the transactions contemplated herein
shall be delivered to the Delaware Secretary of State for filing as provided in
the Reorganization Agreement. The Merger shall be effective at the time and on
the date specified in such certificate of merger (such date and time being
herein referred to as the "Effective Time").
Article 7.
FURTHER ASSURANCES
If at any time the Surviving Corporation shall consider or be advised
that any further assignments, conveyances or assurances are necessary or
desirable to vest, perfect or confirm in the Surviving Corporation title to any
property or rights of Merger Sub or the Company, or otherwise carry out the
provisions hereof, the proper officers and directors of Merger Sub, as of the
Effective Time, and thereafter the officers of the Surviving Corporation acting
on behalf of Merger Sub, shall execute and deliver any and all proper
assignments, conveyances and assurances, and do all things necessary or
desirable to vest, perfect or confirm title to such property or rights in the
Surviving Corporation and otherwise carry out the provisions hereof.
Article 8.
CONDITIONS PRECEDENT
The obligations of Buyer, Merger Sub and the Company to effect the
Merger as herein provided shall be subject to satisfaction, unless duly waived,
of the conditions set forth in the Reorganization Agreement.
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Article 9.
TERMINATION
Anything contained in the Plan of Merger to the contrary
notwithstanding, and notwithstanding adoption hereof by the stockholders of the
Company, this Plan of Merger may be terminated and the Merger abandoned as
provided in the Reorganization Agreement.
Article 10.
MISCELLANEOUS
10.1 This Plan of Merger may be amended or supplemented at any time
prior to the Effective Time by mutual agreement of Buyer, Merger Sub and the
Company. Any such amendment or supplement must be in writing and approved by
their respective Boards of Directors and/or by officers authorized thereby and
shall be subject to the proviso in Section 6.04 of the Reorganization Agreement;
provided, however, that, after the approval and adoption of this Plan of Merger
and the Reorganization Agreement by the stockholders of the Company, no
amendment may be made to this Plan of Merger or the Reorganization Agreement
that would reduce the amount or change the type of the consideration into which
each share of Company Common Stock shall be converted upon consummation of the
Merger.
10.2 Any notice or other communication required or permitted under this
Plan of Merger shall be given, and shall be effective, in accordance with the
provisions of the Reorganization Agreement.
10.3 The headings of the several Articles herein are inserted for
convenience of reference only and are not part of and shall not affect the
meaning or interpretation of this Plan of Merger.
10.4 Initially capitalized terms not otherwise defined herein shall have
the meanings given such terms in the Reorganization Agreement, and the rules of
interpretation applicable thereto shall apply hereto.
10.5 This Plan of Merger shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and entirely to be performed within such jurisdiction.
[Remainder of page left intentionally blank; signatures appear on the
following page.]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement and Plan of Merger to be executed in
counterparts by their duly authorized officers as of the day and year first
above written.
INSTRUMENTARIUM CORPORATION
By /s/ Olli Riikkala
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Olli Riikkala
Chief Executive Officer
BOXER ACQUISITION CORP.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
President
SPACELABS MEDICAL, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
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