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EXHIBIT 2(b)
PLAN OF MERGER
THIS PLAN OF MERGER, dated as of January 14, 1994 (the "Merger
Agreement"), is made and entered into by MCT Acquisition Corp., a Missouri
corporation ("Acquiror Sub" or "Surviving Corporation"), and Medical Composite
Technology, Inc., a California corporation ("Target")(Target and Acquiror Sub
being hereinafter collectively referred to as the "Constituent Corporations").
RECITALS
A. Everest & Jennings International Ltd., a Delaware corporation
("Acquiror"), Target and Acquiror Sub have entered into an Exchange Agreement
and Plan of Merger dated October 23, 1993 (the "Exchange Agreement"),
providing, among other things, for the execution and filing of this Merger
Agreement and the merger of Target with and into Acquiror Sub upon the terms
set forth in the Exchange Agreement and this Merger Agreement (the "Merger").
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective stockholders that Target be merged with and
into Acquiror Sub.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained in this Merger Agreement, the Constituent Corporations hereby agree
that Target shall be merged with and into Acquiror in accordance with the
provisions of the laws of the State of California and the State of Missouri,
upon the terms and subject to the conditions set forth as follows:
ARTICLE 1
THE MERGER
1.1 Filing. This Merger Agreement, together with any additional
changes or documents required, shall be filed with the Secretaries of State of
the State of California and the State of Missouri at the time specified in the
Exchange Agreement. This Merger Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
1.2 Effectiveness. The Merger shall become effective upon the filing
of this Merger Agreement with the Secretaries of State of the State of
California and the State of Missouri (the "Effective Date").
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1.3 Merger. On the Effective Date, Target shall be merged into
Acquiror Sub and the separate corporate existence of Target shall thereupon
cease. Acquiror Sub shall be the Surviving Corporation in the Merger and the
separate corporate existence of Acquiror Sub, with all of its purposes,
objects, rights, privileges, powers, immunities and franchises, shall continue
unaffected and unimpaired by the Merger.
1.4 Further Action. If at any time after the Effective Date any
further action is necessary or desirable to carry out the purposes of this
Merger Agreement or to vest the Surviving Corporation with the full right,
title and possession to all assets, property, rights, privileges, immunities,
powers and franchises of either or both of the Constituent Corporations, the
officers and directors of the Surviving Corporation are fully authorized in the
name of either or both of the Constituent Corporations or otherwise to take all
such action.
ARTICLE 2
CORPORATE GOVERNANCE MATTERS
2.1 Articles. The Articles of Incorporation of Acquiror Sub in
effect immediately prior to the Effective Date shall be the Articles of
Incorporation of the Surviving Corporation unless and until amended as provided
by law.
2.2 Bylaws. The Bylaws of Acquiror Sub in effect immediately prior
to the Effective Date shall be the Bylaws of the Surviving Corporation unless
and until amended as provided by law.
2.3 Directors. From and after the Effective Date, the directors of
Acquiror Sub shall be the directors of the Surviving Corporation and they shall
hold office as provided in the Bylaws of the Surviving Corporation.
2.4 Officers. The officers of the Surviving Corporation shall be the
officers of the Surviving Corporation on the Effective Date and they shall
continue to hold office from and after the Effective Date as provided in the
Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES OF THE CONSTITUENT CORPORATIONS
3.1 Conversion of Target Capital Stock.
(a) On the Effective Date, each then outstanding shares of
Common Stock, no par value, of Target (the "Target Common Stock") (other than
Dissenting Shares (as defined in Section 3.6)) shall cease to be an existing
and issued shares and shall become and be converted into, by virtue of the
Merger and without any action on the part of Acquiror, Acquiror Sub, Target or
the holder thereof, .889928 shares (the "Common Exchange Ratio") of Common
Stock, $0.01 par value, of Acquiror (the "Acquiror Exchange Stock").
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(b) On the Effective Date, each then outstanding share of
Series A Preferred Stock, no par value, of Target (the "Target Series A
Stock") (other than Dissenting Shares) shall cease to be an existing and issued
share and shall become and be converted into, by virtue of the Merger and
without any action on the part of Acquiror, Acquiror Sub, Target or the holder
thereof, 1.126677 shares (the "Series A Exchange Ratio") of Acquiror Exchange
Stock.
(c) On the Effective Date, each then outstanding share of
Series B Preferred Stock, no par value, of Target (the "Target Series B
Stock") (other than Dissenting Shares) shall cease to be an existing and issued
share and shall become and be converted into, by virtue of the Merger and
without any action on the part of Acquiror, Acquiror Sub, Target or the holder
thereof, 1.827191 shares (the "Series B Exchange Ratio") of Acquiror Exchange
Stock.
(d) On the Effective Date, each then outstanding share of
Series C Preferred Stock, no par value, of Target (the "Target Series C
Stock") (other than Dissenting Shares) shall cease to be an existing and issued
share and shall become and be converted into, by virtue of the Merger and
without any action on the part of Acquiror, Acquiror Sub, Target or the holder
thereof, 2.958808 shares (the "Series C Exchange Ratio") of Acquiror Exchange
Stock.
(e) The Series A Exchange Ratio, Series B Exchange Ratio,
Series C Exchange Ratio and the Common Exchange Ratio are hereafter
collectively referred to as the "Exchange Ratios." The Target Common Stock and
the Target Series A Preferred Stock, Target Series B Preferred Stock and Target
Series C Preferred Stock are hereafter collectively referred to as the "Target
Capital Stock."
3.2 Acquiror Sub Common Stock. On the Effective Date, each then
outstanding share of Common Stock, no par value, of Acquiror Sub remain
outstanding and the aggregate of such shares shall constitute the only
outstanding shares of capital stock of the Surviving Corporation.
3.3 Closing of Target Transfer Book. On and after the Effective
Date, holders of certificates representing shares of Target Capital Stock shall
cease to have any rights as stockholders of Target and the stock transfer books
of Target shall be closed with respect to shares of Target Capital Stock issued
and outstanding immediately prior to the Effective Date and no further transfer
of such shares shall thereafter be made on such stock transfer books. If,
after the Effective Date, valid certificates previously representing such
shares are presented to Acquiror or Target, they shall be exchanged as provided
in Section 3.4.
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3.4 Exchange of Certificates. On the closing date of the Merger,
Acquiror shall cause to be deposited with American Stock Transfer (the
"Exchange Agent") for issuance to the former Target stockholders. Promptly
following such delivery, the Exchange Agent shall transmit to the former Target
stockholders in accordance with instructions from the Trustee appropriate
documents to be used by them to surrender their Target Capital Stock
certificates in exchange for Acquiror Exchange Stock certificates and cash in
lieu of any fractional shares of Target Capital Stock. Until so surrendered
and exchanged, each certificate for Target Capital Stock shall represent solely
the right to receive shares of Acquiror Exchange Stock into which the shares of
Target Capital Stock it theretofore represented shall have been converted
pursuant to Section 3.1 (or to perfect the holder thereof's right to receive
payment for such shares pursuant to Chapter 13 of the General Corporation Law
of the State of California and Section 3.6 hereof); provided, however, that
customary and appropriate certificates and indemnities allowing exchange
against lost or destroyed certificates shall be provided.
3.5 No Fractional Shares. No fractional shares of Acquiror Exchange
Stock will be issued in connection with the Merger and no certificate therefor
will be issued. In lieu of such fractional shares, any holder of Target
Capital Stock who would otherwise receive a fractional share shall, upon
surrender of his certificate or certificates representing Target Capital Stock,
be paid an amount in cash (without interest) determined by multiplying the
applicable Exchange Ratio by the value of a share of Acquiror Exchange Stock,
based on the average of the closing price of the Common Stock, $0.01 par value
for the 30 trading days prior to the Effective Date. Acquiror will, subject to
any applicable statute of limitation or abandoned property or similar law, pay
to such holders, upon surrender of their certificates representing Target
Capital Stock outstanding immediately prior to the Effective Date, the cash
value of such fractions so determined, without interest.
3.6 Dissenting Shares. Notwithstanding anything in this Agreement to
the contrary, shares of Target Capital Stock that are issued and outstanding
immediately prior to the Effective Date and that are held by stockholders who
have not voted such shares in favor of the Merger and who have delivered a
written demand for purchase of such shares in the manner provided in Chapter 13
of the California Law ("Dissenting Shares") shall not be canceled and converted
into shares of Acquiror Exchange Stock in accordance with the Exchange Ratios
unless and until such holder shall have failed to perfect, or shall have
effectively withdrawn or lost, such holder's right to demand purchase and
payment under the California Law. If such holder shall have so failed to
perfect, or shall have effectively withdrawn or lost such right, such holder's
shares of Target Capital Stock shall thereupon be deemed to have been canceled
and converted as described in Section 3.1 on the Effective Date, and each such
share shall represent solely the right to receive shares of Acquiror Exchange
Stock in accordance with the applicable Exchange Ratio. From and
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after the Effective Date, no stockholder who has demanded the purchase of
shares as provided in Chapter 13 of the California Law shall be entitled to
vote such holder's shares for any purpose or to receive payment of dividends or
other distributions with respect to such holder's shares (except dividends and
other distributions payable to stockholders of record at a date which is prior
to the Effective Date).
ARTICLE 4
TERMINATION AND AMENDMENT
4.1 Termination. Notwithstanding the approval of this Merger
Agreement by the stockholders of Acquiror Sub and Target, this Merger Agreement
shall terminate forthwith in the event that the Exchange Agreement shall be
terminated as therein provided.
4.2 Amendment. This Merger Agreement may be amended by the parties
hereto at any time before or after approval hereof by the stockholders of
either Acquiror Sub or Target, but, after any such approval, no amendment shall
be made which without the further approval of such stockholders would (i) have
a material adverse effect on the stockholders of either Acquiror Sub or Target,
(ii) change any of the principal terms of the Merger Agreement, or (iii) change
any term of the Articles of Incorporation of the Surviving Corporation. This
Merger Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement
as of the date first written above.
MEDICAL COMPOSITE
MCT ACQUISITION CORP. TECHNOLOGY, INC.
a Missouri corporation a California corporation
By: /s/ Joseph A. Newcomb By: /s/ Frederick A. Middleton
Its Vice President Its Chairman of the Board
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