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Document Preview Agreement and Plan of Merger |
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Title: |
Agreement and Plan of Merger |
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Entities: |
Clinical Data, Inc.; Elan Pharmaceuticals, Inc.; Eckert Seamans Cherin & Mellott; Novitron International, Inc.; Clinical Data Inc.; Group Practice Services Incorporated |
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Date: |
2003 |
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Size: |
Preview shows 53KB of 176KB total |
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Price: |
$79 |
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ID: |
#170628 |
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GROUP PRACTICE SERVICES INCORPORATED
Section 1.1. Accounts Payable. 2
Section 1.2. Accounts Receivable. 2
Section 1.6. Certificate of Merger. 2
Section 1.8. Confidentiality Agreement. 3
Section 1.11. Dissenting Shares. 3
Section 1.13. Effective Time. 3
Section 1.14. Elan Purchase Agreement. 3
Section 1.15. Environmental Claim. 3
Section 1.16. Environmental Laws. 3
Section 1.20. Governmental Authority. 4
Section 1.22. GPSI Beneficiary. 4
Section 1.23. GPSI Benefit Plans. 4
Section 1.24. GPSI Certificates. 4
Section 1.25. GPSI Common Stock. 4
Section 1.26. GPSI Contracts. 4
Section 1.27. GPSI Disclosure Schedule. 4
Section 1.28. GPSI Dissenting Holder. 4
Section 1.29. GPSI ERISA Affiliate. 4
Section 1.30. GPSI Financial Statements. 5
Section 1.31. GPSI Preferred Stock. 5
Section 1.32. GPSI Share or GPSI Shares. 5
Section 1.33. GPSI Signing Stockholders. 5
Section 1.34. GPSI Stockholder Approval. 5
Section 1.35. GPSI Stockholders. 5
Section 1.36. GPSI Subsidiaries. 5
Section 1.37. Intellectual Property. 5
Section 1.40. Knowledge of GPSI. 6
Section 1.41. Knowledge of Parent. 6
Section 1.43. Landmark Merger Agreement. 6
Section 1.46. Material Adverse Effect. 7
Section 1.48. Merger Closing. 7
Section 1.49. Merger Closing Date. 7
Section 1.50. Merger Consideration. 7
Section 1.51. Merger Subsidiary. 7
Section 1.52. Merger Subsidiary Common Stock. 7
Section 1.55. Parent Beneficiary 7
Section 1.56. Parent Benefit Plans. 8
Section 1.57. Parent Common Stock. 8
Section 1.58. Parent ERISA Affiliate. 8
Section 1.59. Parent Financial Statements. 8
Section 1.60. Parent Preferred Stock. 8
Section 1.61. Parent Proxy Statement. 8
Section 1.62. Parent SEC Documents. 8
Section 1.63. Parent Series A Preferred Stock. 8
Section 1.64. Parent Special Meeting. 8
Section 1.65. Parent Stockholder Approval. 9
Section 1.67. Permitted Liens. 9
Section 1.71. Registrable Security or Securities. 9
Section 1.72. Restricted Security. 10
Section 1.73. Restructuring. 10
Section 1.75. Securities Act. 10
Section 1.76. Shelf Registration Statement. 10
Section 2.2. Certificate of Incorporation and Bylaws. 11
Section 2.3. Board of Directors. 12
Section 2.5. Effect on Capital Stock. 12
ARTICLE III STOCKHOLDER APPROVAL; EFFECTIVE TIME; CLOSING 15
Section 3.1. Stockholder Approval. 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF GPSI 15
Section 4.1. Organization and Authority of GPSI and the GPSI Subsidiaries. 16
Section 4.2. Capitalization. 16
Section 4.3. Authority Relative to this Agreement; Recommendation. 18
Section 4.4. Consents and Approvals; No Violations. 19
Section 4.5. Title to and Condition of Assets. 19
Section 4.6. Absence of Certain Events. 19
Section 4.8. Consolidated Financial Statements. 20
Section 4.10. Employee Benefit Plans Matters. 21
Section 4.11. Labor Matters. 23
Section 4.13. Compliance with Law. 25
Section 4.14. Fees and Expenses of Brokers and Others. 25
Section 4.15. Absence of Undisclosed Liabilities. 25
Section 4.16. Environmental Laws and Regulations. 25
Section 4.17. Intellectual Property. 26
Section 4.19. Books and Records. 27
Section 4.20. Accounts Receivable and Accounts Payable. 27
Section 4.21. Material Contracts. 28
Section 4.22. Real or Personal Property. 29
Section 4.23. Vote Required. 29
Section 4.24. Full Disclosure. 29
Section 4.25. Cash; Cancellation of Master Promissory Note. 50
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY 29
Section 5.1. Organization and Authority of the Parent. 29
Section 5.2. Capitalization. 30
Section 5.3. Authority Relative to this Agreement. 30
Section 5.4. Consents and Approvals; No Violations. 31
Section 5.5. SEC Documents. 31
Section 5.6. Fees and Expenses of Brokers and Others. 32
Section 5.7. Absence of Certain Events. 32
Section 5.8. Compliance with Law. 33
Section 5.9. Absence of Undisclosed Liabilities. 33
Section 5.10. Environmental Laws and Regulations. 33
Section 5.11. Vote Required; Board Approval. 34
Section 5.12. Parent Proxy Statement; PPM; Shelf Registration Statement. 34
ARTICLE VI COVENANTS RELATING TO CONDUCT OF BUSINESS 38
ARTICLE VII ADDITIONAL AGREEMENTS 41
Section 7.1. Parent Stockholder Meeting. 41
Section 7.2. The Parent Proxy Statement. 41
Section 7.4. Shelf Registration Statement. 43
Section 7.5. Obligations of Parent. 43
Section 7.6. NASDAQ Listing. 46
Section 7.7. Restructuring. 47
Section 7.8. Access to Information. 47
Section 7.9. Reasonable Efforts; Notification. 47
Section 7.10. Fees and Expenses. 48
Section 7.11. Public Announcements. 48
Section 7.12. Indemnification of Directors, Officers and Other Individuals. 49
Section 7.13. Agreement to Defend. 49
Section 7.14. Amendment of Schedules. 49
Section 7.15. Reorganization Status. 49
ARTICLE VIII CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER 50
Section 8.1. Conditions Precedent to Obligations of Parent and Merger Subsidiary. 50
Section 8.2. Conditions Precedent to Obligations of GPSI. 52
ARTICLE IX TERMINATION; AMENDMENT; WAIVER 53
Section 9.2. Effect of Termination. 54
Section 9.4. Extension; Waiver. 54
Section 9.5. Procedure for Termination, Amendment, Extension or Waiver. 54
Section 10.1. Entire Agreement; Assignment. 55
Section 10.2. Interpretation. 55
Section 10.4. Governing Law. 56
Section 10.5. Parties in Interest. 56
Exhibit 1.40 Knowledge of GPSI
Exhibit 1.41 Knowledge of Parent
Exhibit 1.63 Certificate of Designation
Exhibit 2.1 Certificate of Merger
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of April 29, 2003, by and among NOVITRON INTERNATIONAL, INC., a Delaware corporation ("Parent"), CLINICAL DATA INC., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Subsidiary"), and GROUP PRACTICE SERVICES INCORPORATED, a Delaware corporation ("GPSI"), recites and provides as follows:
WHEREAS, the respective Boards of Directors of Parent, Merger Subsidiary and GPSI have approved the merger of GPSI with and into Merger Subsidiary, with the Merger Subsidiary being the surviving corporation (the "Merger"), upon the terms and subject to the conditions of this Agreement and whereby each issued and outstanding share of GPSI Common Stock and each issued and outstanding share of GPSI Preferred Stock will be converted into shares of Parent Series A Preferred Stock, as provided herein;
WHEREAS, the Board of Directors of Parent has agreed that upon Parent Stockholder Approval, the shares of Parent Series A Preferred Stock held by the GPSI Stockholders will be convertible into shares of Parent Common Stock;
WHEREAS, the Board of Directors of Parent has recommended that its stockholders approve and adopt the transactions contemplated by this Agreement and will submit for consideration, adoption and approval to the stockholders of Parent at the Parent Special Meeting, the transactions contemplated by this Agreement;
WHEREAS, the GPSI Signing Stockholders intend to execute in accordance with the applicable provisions of the DGCL and the Certificate of Incorporation and Bylaws of GPSI, a non-unanimous written consent adopting and approving this Agreement, the Merger and the transactions contemplated hereby;
WHEREAS, GPSI, Merger Subsidiary and Parent desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger; and
WHEREAS, for Federal income Tax purposes, it is intended that the Merger shall constitute a reorganization within the meaning of Section 368 of the Code and the regulations promulgated thereunder.
NOW, THEREFORE, in consideration of the premises, which are incorporated into and made part of this Agreement, and of the mutual representations, warranties, covenants, agreements and conditions set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
"Accounts Payable" shall mean payables from the operations of GPSI and the GPSI Subsidiaries arising in the ordinary course of the Business as of the Merger Closing.
"Accounts Receivable" shall mean all accounts receivable, security deposits, notes receivable, prepaids and associated rights owned by GPSI and the GPSI Subsidiaries and arising in the ordinary course of the Business as of the Merger Closing.
"Affiliate" shall have the meaning set forth in Rule 145 of the SEC pursuant to the Securities Act.
"Agreement" shall have the meaning set forth in the preamble to this Agreement.
"Business" shall mean all of the business of GPSI and the GPSI Subsidiaries, including, without limitation, the businesses relating to (a) the management of, and/or provision of consulting services to, physician office laboratories, (b) the ownership and operation of moderately complex reference laboratories, (c) the provision of sales and support services to Landmark, (d) the sales of laboratory reagents and supplies, and (e) the refurbishing, sales and maintenance of laboratory equipment.
"Certificate of Merger" shall have the meaning set forth in Section 2.1 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" shall have the meaning set forth in Section 7.8 hereof.
"Contracts" shall mean all contracts, agreements, leases, licenses, arrangements, understandings, relationships and commitments, whether written or oral (and all amendments, side letters, modifications and supplements thereto).
"DGCL" shall mean the Delaware General Corporation Law, as amended.
"Dissenting Shares" shall have the meaning set forth in Section 2.5(c) hereof.
"DOL" shall have the meaning set forth in Section 4.10(a) hereof.
"Effective Time" shall have the meaning set forth in Section 3.2 hereof.
"Elan Purchase Agreement" shall mean the Asset Purchase Agreement, dated as of December 9, 2002, by and among Elan Pharmaceuticals, Inc., Elan Diagnostics, Inc. and Parent, as it may be amended from time to time.
"Environmental Claim" shall have the meaning set forth in Section 4.16(b) hereof.
"Environmental Laws" shall have the meaning set forth in Section 4.16(a) hereof.
"ERISA" shall have the meaning set forth in Section 4.10(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"GAAP" shall mean generally accepted accounting principles as in effect in the United States of America at the time of the preparation of the subject financial statement.
"Governmental Authority" shall mean any federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency, instrumentality or arbitration panel, or any court, in each case whether of the United States, any of its possessions or territories, or of any foreign nation.
"GPSI" shall have the meaning set forth in the preamble to this Agreement.
"GPSI Beneficiary" shall have the meaning set forth in Section 4.10(a) hereof.
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