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EXHIBIT 2.2
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MERGER AGREEMENT
AMONG
THE ▇▇▇▇▇-▇▇▇▇▇▇▇ HEALTH SERVICES CORPORATION,
▇▇▇▇▇-▇▇▇▇▇▇▇ ACQUISITION LLC
AND
▇▇▇▇▇-▇▇▇▇▇▇▇ DIAGNOSTICS COMPANY L.P.
SEPTEMBER 25, 1998
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TABLE OF CONTENTS
1. Definitions............................................................................................... 1
(a) "Buyer-owned Units" ............................................................................. 1
(b) "Partnership Agreement".......................................................................... 1
(c) "Person" ........................................................................................ 1
(d) "Preferred Shares" .............................................................................. 1
(e) "Prospectus" .................................................................................... 1
(f) "Requisite Unitholder Approval" ................................................................. 1
(g) "SEC" ........................................................................................... 1
(h) "Securities Act" ................................................................................ 1
(i) "Target Unit" ................................................................................... 1
(j) "Target Unitholder" ............................................................................. 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) Partnership Agreement. ................................................................. 2
(iii) General Partner......................................................................... 2
(iv) Conversion of Target Units. ............................................................ 2
(v) Conversion of Membership Interest 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) Federal and State Securities Laws. .................................................... 4
(ii) Partnership Agreement. ................................................................. 4
4. Conditions to Obligation to Close......................................................................... 4
(a) Conditions to Obligation of the Buyer and the Transitory
Subsidiary....................................................................................... 4
(b) Conditions to Obligation of the Target. ......................................................... 5
5. Termination............................................................................................... 5
(a) Termination of Agreement. ....................................................................... 5
(b) Effect of Termination. .......................................................................... 6
6. Miscellaneous............................................................................................. 6
(a) No Third-Party Beneficiaries. ................................................................... 6
(b) Entire Agreement. ............................................................................... 6
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(c) Succession and Assignment. ...................................................................... 6
(d) Counterparts. ................................................................................... 6
(e) Headings. ....................................................................................... 6
(f) Notices. ........................................................................................ 6
(g) Governing Law. .................................................................................. 7
(h) Amendments and Waivers. ......................................................................... 7
(i) Severability. ................................................................................... 7
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MERGER AGREEMENT
This Agreement is entered into effective the 25th day of September, 1998,
by and among The ▇▇▇▇▇-▇▇▇▇▇▇▇ Health Services Corporation, a Delaware
corporation ( "BUYER"), ▇▇▇▇▇-▇▇▇▇▇▇▇ Acquisition LLC, a Delaware limited
liability company and a wholly-owned subsidiary of the Buyer ("TRANSITORY
SUBSIDIARY"), and ▇▇▇▇▇-▇▇▇▇▇▇▇ Diagnostics Company L.P., a Delaware limited
partnership ("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 limited partnership units
of the Target for the Preferred Shares through a 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 UNITS" means any Target Unit that the Buyer, the
Transitory Subsidiary, or any of their affiliates own beneficially.
(b) "PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
and Certificate of Limited Partnership of ▇▇▇▇▇-▇▇▇▇▇▇▇ Diagnostics Company L.P.
(c) "PERSON" means an individual, a partnership, a limited liability
company, 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).
(d) "PREFERRED SHARES" means the Series 1 preferred stock of the
Buyer.
(e) "PROSPECTUS" means the final prospectus relating to the
registration of the Preferred Shares under the Securities Act.
(f) "REQUISITE UNITHOLDER APPROVAL" means the affirmative vote of the
holders of a majority of the Target Units in favor of this Agreement and the
Merger.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(i) "TARGET UNIT" means any Depository Unit of the Target.
(j) "TARGET UNITHOLDER" means any Person who or which holds any Target
Units.
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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 entity surviving the Merger
("SURVIVING ENTITY").
(b) CLOSING. The closing of the transactions contemplated by this
Agreement ("CLOSING") shall take place at the offices of Schottenstein, Zox &
▇▇▇▇ 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 Delaware a
Certificate of Merger ("CERTIFICATE OF MERGER"), and (ii) the Buyer will cause
the Surviving Entity to deliver the Preferred Shares to the Exchange Agent in
the manner provided below in this Section2.
(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
Delaware. The Merger shall have the effect set forth under Delaware
law. The Surviving Entity 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) PARTNERSHIP AGREEMENT. The Partnership Agreement of the
Surviving Entity as in effect immediately prior to the Effective Time
shall remain unchanged.
(iii) GENERAL PARTNER. The general partner of Target shall
continue as the general partner of the Surviving Entity at and as of
the Effective Time (retaining their respective positions and terms of
office).
(iv) CONVERSION OF TARGET UNITS. At and as of the Effective
Time, (A) the Target Unitholders (other than any Buyer-owned Unit)
shall have the right to receive 1 Preferred Share ("Conversion Ratio")
for each two (2) Target Units (the "Merger Consideration"), and (B)
each Buyer-owned Unit shall be cancelled; provided, however, that the
Merger Consideration shall be subject to equitable adjustment in the
event of any split, distribution, or other change in the number of
Target Units outstanding. No Target Unit shall be deemed to be
outstanding or to
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have any rights other than those set forth above in this
Section 2(d)(iv) after the Effective Time. No fractional Preferred
Shares shall be issued and, in lieu thereof, cash shall be paid to such
Target Unitholders at the rate of $10.00 per Target Unit.
(v) CONVERSION OF MEMBERSHIP INTEREST OF THE TRANSITORY
SUBSIDIARY. At and as of the Effective Time, the Membership Interests
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
Units (other than any Buyer-owned Units) and (B) the Buyer will mail a
letter of transmittal (with instructions for its use) each record
holder of outstanding Target Units for the holder to use in
surrendering the certificates which represented his or its Target
Units in exchange for a certificate representing the number of
Preferred Shares to which he or it is entitled.
(ii) The Buyer will not pay any dividend or make any
distribution on Preferred Shares (with a record date at or after the
Effective Time) to any record holder of outstanding Target Units until
the holder surrenders for exchange his or its certificates which
represented Target Units. 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
Preferred Shares and dividends and distributions thereon remaining
unclaimed 180 days after the Effective Time, and thereafter each
remaining record holder of outstanding Target Units 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 Units outstanding prior to the Effective
Time shall not be made on the stock transfer books of the Surviving Entity.
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
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effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section4
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) PARTNERSHIP AGREEMENT. The Target will call a special
meeting of its Target Unitholders (the "SPECIAL MEETING"), as soon as
reasonably practicable in order that the Target Unitholders may
consider and vote upon the adoption of this Agreement and the approval
of the Merger in accordance with the Partnership Agreement and
Delaware 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.
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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 Unitholder 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 Section4(b) if it
executes a writing so stating at or prior to the Closing.
5. TERMINATION.
(a) TERMINATION OF AGREEMENT. Any of the Parties may terminate this
Agreement with the prior authorization of its manager, general partner or board
of directors, as the case may be (whether before or after the Requisite
Unitholder 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 Unitholder 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
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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 Unitholders.
(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) 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: ▇▇▇▇▇-▇▇▇▇▇▇▇ Diagnostics Company L.P.
Two Nationwide Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Gold, President
If to the Buyer: The ▇▇▇▇▇-▇▇▇▇▇▇▇ Health Services Corporation
Two Nationwide Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Gold, President
If to the Transitory ▇▇▇▇▇-▇▇▇▇▇▇▇ Acquisition LLC
Subsidiary: Two Nationwide Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Gold, President
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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 Delaware without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
(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, general partner or
manager, as the case may be; provided, however, that any amendment effected
subsequent to stockholder approval will be subject to the restrictions contained
in Delaware 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 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 ▇▇▇▇▇-▇▇▇▇▇▇▇ HEALTH SERVICES
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Gold
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▇▇▇▇▇▇▇ ▇. Gold, President
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▇▇▇▇▇-▇▇▇▇▇▇▇ ACQUISITION LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Gold
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▇▇▇▇▇▇▇ ▇. Gold, Manager
By: ▇▇▇▇▇-▇▇▇▇▇▇▇ DIAGNOSTICS COMPANY L.P.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. Gold
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▇▇▇▇▇▇▇ ▇. Gold, President
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