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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Peoples Community Bancorp Inc.

Date:

2007

Size:

177KB total

Price:

$63

ID:

#2842797

► Plans ► Agreements ► Agreements & Plans of Merger
► Financial ► S&Ls/Savings Banks

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AGREEMENT AND PLAN OF MERGER

by and among

UHS HOLDCO, INC.,

UHS MERGER SUB, INC.,

UNIVERSAL HOSPITAL SERVICES, INC.

(as the Company)

and

J.W. CHILDS EQUITY PARTNERS III, L.P.

(solely in its capacity as the Representative)

Dated as of April 15, 2007

TABLE OF CONTENTS

		Page
ARTICLE 1 DEFINED TERMS		1

1.1	Defined Terms	1

ARTICLE 2 THE MERGER

2.1	Merger; Surviving Company	12
2.2	Effective Time	12
2.3	Effects of the Merger	12
2.4	Certificate of Incorporation and Bylaws	12
2.5	Directors and Officers	13
2.6	Conversion of Shares	13
2.7	Treatment of Options	13
2.8	Merger Consideration; Post-Closing Merger-Consideration Adjustment	14
2.9	Closing Payments	16
2.10	Dissenting Shares; Notices to Securityholders	18
2.11	Closing of Transfer Books	19
2.12	Transfer Taxes	19

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY		20

3.1	Organization, Good Standing and Other Matters; Subsidiaries and Joint Ventures	20
3.2	Capital Structure of the Company	20
3.3	Options	20
3.4	Authority	21
3.5	No Conflict; Required Filings and Consents	21
3.6	Financial Statements; Absence of Undisclosed Liabilities; Indebtedness; Independence of
	Accountants; SEC Reports and Filings	22
3.7	Absence of Certain Changes and Events	23
3.8	Compliance With Laws; Permits	24
3.9	Litigation; Orders	25
3.10	Insurance	25
3.11	Owned Real Property	25
3.12	Leased Real Property	25
3.13	Tangible Property	26
3.14	Environmental Matters	26
3.15	Taxes	27
3.16	Material Contracts	28
3.17	Employees	29
3.18	Labor Matters	29
3.19	Customers; Suppliers	29
3.20	ERISA Compliance	30
3.21	Intellectual Property	32

		Page
3.22	Brokers Commissions	33
3.23	Certain Transactions	33
3.24	Product Warranty and Product Liability	33
3.25	Unlawful Benefits	33

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB		34

4.1	Organization, Good Standing and Other Matters	34
4.2	Authority	34
4.3	No Conflict: Required Filings and Consents	34
4.4	Financial Ability	35
4.5	Investment Intent	35
4.6	Brokers Commissions	35
4.7	Activities of Merger Sub	35
		35
ARTICLE 5 COVENANTS OF THE COMPANY		36

5.1	Conduct of Business	36
5.2	Access to Information	38
5.3	Payoff Letter	38
5.4	Sellers Expenses	38
5.5	Exclusive Dealing	38
5.6	Letters of Credit	38
5.7	Actions with Respect to Senior Notes	39

ARTICLE 6 COVENANTS OF PURCHASER		40

6.1	Access to Information	40
6.2	Indemnification of Directors and Officers	40
6.3	Employees	41
6.4	Investigation and Agreement by Purchaser; No Other Representations or Warranties	42

ARTICLE 7 COVENANTS AND AGREEMENTS		42

7.1	Consents; Governmental Approvals	42
7.2	Notification	44
7.3	Public Announcements; Confidentiality	44
7.4	Cooperation on Tax Matters	45
7.5	Financial Information; Cooperation with Financings	45

ARTICLE 8 CONDITIONS PRECEDENT		45

8.1	Conditions to Each Partys Obligation	45
8.2	Conditions to Obligation of Purchaser and Merger Sub	46
8.3	Conditions to Obligations of the Company	47

ARTICLE 9 CLOSING		48

9.1	Closing	48

		Page
ARTICLE 10 TERMINATION		48

10.1	Events of Termination	48
10.2	Effect of Termination	49

ARTICLE 11 GENERAL PROVISIONS		49

11.1	Non-Survival of Representations and Warranties	49
11.2	Maximum Recovery	49
11.3	Updates to Schedules	49
11.4	Further Assurances	50
11.5	Entire Agreement; Agreement	50
11.6	No Waiver	50
11.7	Severability	50
11.8	Expenses and Obligations	50
11.9	Notices	50
11.10	Counterparts	52
11.11	Governing Law; Consent to Jurisdiction	53
11.12	Rights Cumulative	53
11.13	Assignment	53
11.14	Third-Party Beneficiaries	53
11.15	Headings; Construction	53

iii

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of April 15, 2007, is made by and among UHS Holdco, Inc. (Purchaser), a Delaware corporation, UHS Merger Sub, Inc., a Delaware corporation and a wholly-owned Subsidiary of Purchaser (Merger Sub), Universal Hospital Services, Inc., a Delaware corporation (the Company) and J.W. Childs Equity Partners III, L.P., a Delaware limited partnership solely in its capacity as the Representative (as defined below).

RECITALS

WHEREAS, the Company, Purchaser and Merger Sub intend to effect a merger (the Merger) of Merger Sub with and into the Company in accordance with this Agreement and the General Corporation Law of the State of Delaware (the DGCL). Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a Subsidiary of Purchaser; and

WHEREAS, it is anticipated that certain of the Stockholders (the Rollover Stockholders) will have, as of immediately prior to the Effective Time, contributed certain shares of Common Stock then held by them (the Rollover Shares) to Purchaser in exchange for Purchasers common stock in a transaction intended to qualify as a transfer pursuant to Section 351 of the Code (the Rollover);

WHEREAS, the respective boards of directors of the Company, Purchaser and Merger Sub have each approved this Agreement and the transactions contemplated hereby, including the Merger, in accordance with the DGCL and upon the terms and subject to the conditions set forth herein; and

WHEREAS, this Agreement will be adopted, and the transactions contemplated hereby will be approved, by the written consent of Stockholders holding at least a majority of the outstanding voting stock of the Company in accordance with Section 228 of the DGCL as promptly as practicable but no later than one (1) Business Day following the execution and delivery of this Agreement by all parties hereto (the Written Consent).

NOW, THEREFORE, in consideration of the premises and 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 hereto, intending to be legally bound, hereby agree as follows:

ARTICLE 1

DEFINED TERMS

1.1 Defined Terms. The following terms shall have the following meanings in this Agreement:

Accountants has the meaning set forth in Section 2.8(a).

Adjustment Amount means the net amount of all increases or decreases to the Estimated Merger Consideration pursuant to Section 2.8(c).

Adjustment Amount Per Share means the quotient of (a) the Adjustment Amount over (b) the Fully Diluted Shares (including the Rollover Shares).

Advisors has the meaning set forth in Section 5.2.

Affiliate of any Person means any Person which, directly or indirectly, controls or is controlled by that Person, or is under common control with that Person. For the purposes of this definition, control (including, with correlative meaning, the terms controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

Antitrust Laws has the meaning set forth in Section 7.1(c).

Audited Financial Statements has the meaning set forth in Section 3.6(a).

Balance Sheet Date means February 28, 2007.

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