Preview | Agreement and Plan of Merger |

Document Preview

Agreement and Plan of Merger

Click "Add to Cart" button to purchase document.
Documents are emailed immediately after purchase.
You can also browse documents by title, category, or company... or click here for help finding documents.

Title:

Agreement and Plan of Merger

Entities:

HealthTronics Surgical Services Inc.; Prime Medical Services Inc.; Akin, Gump, Strauss, Hauer & Feld LLP

Date:

2004

Size:

208KB total

Price:

$89

ID:

#421609

► Plans ► Agreements ► Agreements & Plans of Merger
► Healthcare ► Medical Equipment & Supplies
► Miscellany
► Services ► Legal

Start of Preview

AGREEMENT AND PLAN OF MERGER

By and Between

PRIME MEDICAL SERVICES, INC.

and

HEALTHTRONICS SURGICAL SERVICES, INC.

Dated as of June 11, 2004

TABLE OF CONTENTS


ARTICLE I THE MERGER			1
	1.1	The Merger	1
	1.2	Effective Time of the Merger	1
	1.3	Tax Treatment	2

ARTICLE II THE SURVIVING CORPORATION			2
	2.1	Certificate of Incorporation	2
	2.2	Bylaws	2
	2.3	Directors and Officers	2

ARTICLE III CONVERSION OF SHARES			2
	3.1	Conversion of Capital Stock	2
	3.2	Surrender and Payment	3
	3.3	Stock Plans; Convertible Securities	5
	3.4	Closing	5

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF STONE			6
	4.1	Organization and Qualification	6
	4.2	Capitalization	7
	4.3	Authority	8
	4.4	Consents and Approvals; No Violation	8
	4.5	Stone SEC Reports	9
	4.6	Financial Statements	10
	4.7	Absence of Undisclosed Liabilities	10
	4.8	Absence of Certain Changes	10
	4.9	Taxes	11
	4.10	Litigation	12
	4.11	Employee Benefit Plans; ERISA	13
	4.12	Environmental Liability	15
	4.13	Compliance with Applicable Laws	17
	4.14	Insurance	17
	4.15	Labor Matters; Employees	17
	4.16	Permits	18
	4.17	Material Contracts	18
	4.18	Required Stockholder Vote or Consent	19
	4.19	Proxy/Prospectus; Registration Statement	19
	4.20	Intellectual Property	19
	4.21	Hedging	20
	4.22	Brokers	20
	4.23	Fairness Opinion	20
	4.24	Takeover Laws	20
	4.25	Healthcare Laws	20

ARTICLE V REPRESENTATIONS AND WARRANTIES OF WAVE			22
	5.1	Organization and Qualification	22
	5.2	Capitalization	23
	5.3	Authority	23


	5.4	Consents and Approvals; No Violation	24
	5.5	Wave SEC Reports	25
	5.6	Wave Financial Statements	25
	5.7	Absence of Undisclosed Liabilities	26
	5.8	Absence of Certain Changes	26
	5.9	Taxes	26
	5.10	Litigation	27
	5.11	Employee Benefit Plans; ERISA	28
	5.12	Environmental Liability	31
	5.13	Compliance with Applicable Laws	32
	5.14	Insurance	32
	5.15	Labor Matters; Employees	32
	5.16	Permits	33
	5.17	Material Contracts	33
	5.18	Required Stockholder Vote or Consent	34
	5.19	Proxy/Prospectus; Registration Statement	34
	5.20	Intellectual Property	34
	5.21	Hedging	35
	5.22	Brokers	35
	5.23	Fairness Opinion	35
	5.24	Takeover Laws	35
	5.25	Healthcare Laws	35

ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER			36
	6.1	Conduct of Business by Stone Pending the Merger	36
	6.2	Conduct of Business by Wave Pending the Merger	39

ARTICLE VII ADDITIONAL AGREEMENTS			41
	7.1	Access and Information	41
	7.2	Acquisition Proposals	42
	7.3	Directors? and Officers? Indemnification and Insurance	44
	7.4	Further Assurances	45
	7.5	Expenses	45
	7.6	Cooperation	45
	7.7	Publicity	45
	7.8	Additional Actions	46
	7.9	Filings	46
	7.10	Consents	46
	7.11	Stockholders? Meetings	46
	7.12	Preparation of the Proxy/Prospectus and Registration Statement	47
	7.13	Stock Exchange Listing	48
	7.14	Notice of Certain Events	48
	7.15	Affiliate Agreements; Tax Treatment	48
	7.16	Stockholder Litigation	49
	7.17	Indenture and Credit Facility Matters	49
	7.18	Employment Agreements and Severance Agreements	49
	7.19	Surviving Corporation Board of Directors; Officers	49


ARTICLE VIII CONDITIONS TO CONSUMMATION OF THE MERGER			50
	8.1	Conditions to the Obligation of Each Party	50
	8.2	Conditions to the Obligations of Wave	51
	8.3	Conditions to the Obligations of Stone	51

ARTICLE IX SURVIVAL			52
	9.1	Survival of Representations and Warranties	52
	9.2	Survival of Covenants and Agreements	52

ARTICLE X TERMINATION, AMENDMENT AND WAIVER			52
	10.1	Termination	52
	10.2	Effect of Termination	55

ARTICLE XI MISCELLANEOUS			55
	11.1	Notices	55
	11.2	Entire Agreement	56
	11.3	Assignment; Binding Effect; Third Party Beneficiaries	56
	11.4	Severability	56
	11.5	Interpretation	56
	11.6	Counterparts; Effectiveness	57
	11.7	Governing Law	57
	11.8	Attorneys? Fees	57
	11.9	Disclosure Schedules	57
	11.10	Amendments and Supplements	57
	11.11	Construction	57
	11.12	Extensions, Waivers, Etc	58

iii

INDEX OF DEFINED TERMS


*Term*		*Section*
Agreement		Preamble
Ancillary Agreements		4.3
Audit		4.9(h)
Business Employee		7.18(c)
Certificates of Merger		1.2
Closing		3.4
Closing Date		3.4
Code		Preamble
Confidentiality Agreement		7.1
Customary Post-Closing Consents		4.4(b)
D&O Insurance		7.3(c)
Delaware Certificate of Merger		1.2
Designees		7.19
DGCL		1.1
Effective Time		1.2
Enforceability Exception		4.3
Environmental Laws		4.12(a)
ERISA		4.11(a)
Exchange Act		4.4(b)
Exchange Agent		3.2(a)
Exchange Fund		3.2(a)
Exchange Instructions		3.2(b)
Exchange Ratio		3.1(b)
GAAP		4.6
GBCC		1.1
Georgia Articles of Merger		1.2
Governmental Authority		3.2(c)
Hazardous Substances		4.12(b)
Healthcare Law		4.25(a)
HIPAA		4.25(f)
HSR Act		4.4(b)
Indemnified Liabilities		7.3(a)
Indemnified Party		7.3(a)
Intellectual Property		4.20
Liens		4.2(b)
Merger		Preamble
Merger Consideration		3.1(b)
PBGC		4.11(b)
PCBs		4.12(e)
Permits		4.16
Person		3.2(c)
Post-Closing Amendment		7.10(b)
proceeding		7.3(a)
Proxy/Prospectus		4.19
Registration Statement		4.19
Representatives		4.25(a)
Sarbanes-Oxley Act		4.5
Securities Act		4.4(b)
SEC		4.5(a)
SSA		4.25(a)
Stock Certificate		3.1(b)
Stock Consideration		3.1(b)
Stone		Preamble
Stone Acquisition Proposal		7.2
Stone Benefit Plans		4.11(a)
Stone Breach		10.1(d)
Stone Contract Employees		4.11(i)
Stone Designees		7.19
Stone Disclosure Schedule		4.1(a)
Stone Employee		4.11(a)
Stone Employee Agreement		4.11(a)
Stone Engagement Letters		4.22
Stone ERISA Affiliate		4.11(a)
Stone Legacy Employee		4.11(a)
Stone Material Adverse Effect		4.1(c)
Stone Material Contracts		4.17(a)
Stone Options		3.3(a)
Stone SEC Reports		4.5(a)
Stone Severance Package Table		4.11(i)
Stone Shares		3.1(a)
Stone Special Meeting		7.11(a)
Stone Stockholders? Approval		4.18
Stone Superior Proposal		10.1(h)
Stone Voting Agreements		Preamble
Stone?s Employee Communication		6.1(n)
Subsidiary		4.1(c)
Surviving Corporation		1.1
Tax Authority		4.9(h)
Tax Returns		4.9(h)
Taxes		4.9(h)
Termination Date		10.1(b)
Termination Fee		10.2(b)
Transactions		3.4
Voting Agreements		Preamble
WARN Act		4.15(c)
Wave		Preamble
Wave Acquisition Proposal		7.2(b)
Wave Benefit Plans		5.11(a)
Wave Breach		10.1(c)
Wave Common Shares		3.1(a)
Wave Contract Employees		5.11(i)
Wave Designees		7.19
Wave Disclosure Schedule		5.1(a)
Wave Employee		5.11(a)
Wave Employee Agreement		5.11(a)
Wave Engagement Letters		5.22
Wave ERISA Affiliate		5.11(a)
Wave Legacy Employee		5.11(a)
Wave Material Adverse Effect		5.1(c)
Wave Material Contracts		5.17(a)


*Term*		*Section*
Wave Options		3.3(e)
Wave Redomestication Approval		5.18
Wave SEC Reports		5.5(a)
Wave Severance Package Table		5.11(h)
Wave Share Issuance Approval		5.18
Wave Special Meeting		7.11(b)
Wave Stockholders? Approval		5.18
Wave Superior Proposal		10.1(j)
Wave Voting Agreements		Preamble
Wave?s Employee Communication		6.2(n)


Exhibits
2.1		Form of Surviving Corporation Articles of Incorporation
2.2		Form of Surviving Corporation Bylaws
2.3		Surviving Corporation Officers
7.15		Form of Affiliate Agreement
7.18(d)(i)		Form of Board Service and Release Agreement
7.18(d)(ii)		Form of Severance and Noncompetition Agreement
7.18(d)(iii)		Form of Severance and Noncompetition Agreement
7.18(d)(iv)		Form of Retention Agreement
7.18(d)(v)		Form of Board Service, Amendment and Release Agreement

AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this ?Agreement?) dated as of June 11, 2004, is by and between Prime Medical Services, Inc., a Delaware corporation (?Stone?), and HealthTronics Surgical Services, Inc., a Georgia corporation (?Wave?).

WHEREAS, the respective Boards of Directors of Wave and Stone deem it advisable and in the best interests of their respective corporations and stockholders that Stone merge with and into Wave (the ?Merger?) upon the terms and subject to the conditions set forth in this Agreement, and such Boards of Directors have approved this Agreement and the Merger and each has directed that this Agreement be presented to their respective stockholders for approval; and

WHEREAS, concurrently with the execution and delivery of this Agreement, with the approval of Stone?s Board of Directors, Wave has entered into a voting agreement with Kenneth S. Shifrin, under which such parties have among other things agreed to support the Merger upon the terms and conditions set forth therein (the ?Stone Voting Agreement?);

WHEREAS, concurrently with the execution and delivery of this Agreement, with the approval of Wave?s Board of Directors, Stone has entered into a voting agreement with Argil J. Wheelock, under which such parties have among other things agreed to support the Merger upon the terms and conditions set forth therein (the ?Wave Voting Agreement? and, along with the Stone Voting Agreement, the ?Voting Agreements?); and

WHEREAS, for federal income tax purposes, it is intended that the Merger will qualify as a reorganization under the provisions of Section 368(a) of the United States Internal Revenue Code of 1986, as amended (the ?Code?).

NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements contained herein, the parties hereto agree as follows:

ARTICLE I

THE MERGER

1.1 The Merger. Upon the terms and subject to the conditions hereof, at the Effective Time Stone shall merge with and into Wave and the separate corporate existence of Stone shall thereupon cease and Wave shall be the surviving corporation in the Merger (sometimes referred to herein as the ?Surviving Corporation?). The Merger shall have the effects set forth in Section 14-2-1106 of the Georgia Business Corporation Code (?GBCC?) and Section 259 of the Delaware General Corporation Law (the ?DGCL?), including the Surviving Corporation?s succession to and assumption of all rights and obligations of Stone.

1.2 Effective Time of the Merger. The Merger shall become effective (the ?Effective Time?) upon the later of (a) the date of filing of a properly executed Articles of Merger (the ?Georgia Articles of Merger?) relating to the Merger with the Secretary of State of Georgia in accordance with the GBCC, (b) the date of filing of a properly executed Certificate of Merger (the ?Delaware Certificate of Merger? and, along with the Georgia Articles of Merger, the

?Certificates of Merger?) relating to the Merger with the Secretary of State of Delaware in accordance with the DGCL, and (c) at such later time as the parties shall agree and set forth in the Certificates of Merger. The filing of the Certificates of Merger referred to above shall be made as soon as practicable on the Closing Date set forth in Section 3.4.

End of Preview

Home Intelligence Services