Exhibit 2.1
AGREEMENT AND PLAN OF SHARE
EXCHANGE
AGREEMENT AND PLAN OF SHARE
EXCHANGE, dated this 25th day of October, 2004, pursuant to Section
11.03 of the Massachusetts Business Corporation Act (the
“Act”), between Lifeline Systems, Inc., a Massachusetts
corporation having its principal place of business at 111 Lawrence
Street, Framingham, Massachusetts (the “Company”), and
Lifeline Holdings, Inc., a Massachusetts corporation having its
principal place of business at 111 Lawrence Street, Framingham,
Massachusetts (the “Holding Company”).
WITNESSETH:
WHEREAS, the Company is a
corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts and is authorized to issue 50,000,000
shares of Common Stock, $0.02 par value per share (“Company
Common Stock”), of which 13,801,858 shares are issued and
outstanding as of the date hereof;
WHEREAS, the Holding Company is a
corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts and is authorized to issue (i)
50,000,000 shares of Common Stock, $0.02 par value per share
(“Holding Company Common Stock”), of which one share is
issued and outstanding as of the date hereof, which share is owned
by the Company, and (ii) 5,000,000 shares of Preferred Stock, $0.01
par value per share, of which no shares are issued and outstanding
as of the date hereof;
WHEREAS, the Holding Company was
formed for the purpose of engaging in a statutory share exchange
transaction with the Company by which, upon completion of the Share
Exchange (defined below), the Holding Company will own 100% of the
outstanding shares of capital stock of the Company and the
shareholders of the Company (excluding the holders of Excluded
Shares (as defined below), if any) will become shareholders of the
Holding Company; and
WHEREAS, the Boards of Directors of
the Company and the Holding Company have adopted and approved this
Agreement and Plan of Share Exchange;
NOW THEREFORE, in consideration of
the foregoing premises and the undertakings herein contained and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Share Exchange
.
(a) As of the Effective Time,
without any action on the part of the holders thereof, (i) each
issued and outstanding share of Company Common Stock (excluding
shares held by shareholders who perfect their dissenters rights, if
any (the “Excluded Shares”)) shall be automatically
exchanged for one fully paid and non-assessable share of Holding
Company Common Stock and its associated preferred stock purchase
right, (ii) the Holding Company shall acquire all of the shares of
Company Common Stock issued and outstanding immediately prior to
the Effective Time, and (iii) each issued and outstanding share of
Holding Company Common Stock held by the Company immediately prior
to the Effective Time shall be automatically cancelled
(collectively, the actions and events described in clauses (i)
through (iii), the “Share
Exchange”). As a result of the Share
Exchange, the Holding Company shall become the sole shareholder of
the Company and the holders of shares of Company Common Stock as of
immediately prior to the Effective Time shall have no rights as
shareholders of the Company other than those provided herein or as
provided by law.
2. Stock
Certificates . From
and after the Effective Time, outstanding certificates representing
shares of Company Common Stock shall thereafter represent the
identical number of shares of Holding Company Common Stock only
(including associated preferred stock purchase rights).
3. Appraisal
Rights . In the event
that shareholders of the Company are entitled to appraisal rights
in connection with the Share Exchange, the provisions of this
Section 3 shall apply. Any holder of Company Common Stock who
perfects his dissenters’ right to appraisal in accordance
with and as contemplated by the applicable provisions of Article 13
of the Act shall be entitled to receive the fair value of such
shares in cash as determined pursuant to such provisions of law;
provided, however, that no such payment shall be made to any
dissenting shareholder unless and until such dissenting shareholder
has complied with the applicable provisions of Article 13 of the
Act. Any amounts payable to a shareholder of the Company pursuant
to this Section 3 shall be paid by the Company.
4. Shareholder Approval
. As soon as practicable
after the execution of this Agreement and Plan of Share Exchange,
the Company and the Holding Company shall, if necessary under the
Act, submit this Agreement and Plan of Share Exchange to their
respective shareholders for approval.
5. Effective Time; Conditions
to the Share Exchange .
(a) The Share Exchange shall be
effective upon the date and time Articles of Share Exchange
Involving Domestic Corporations and Domestic Other Entities
(“Articles of Share Exchange”) are received for filing
by the Secretary of the Commonwealth of the Commonwealth of
Massachusetts, the submission of which Articles of Share Exchange
shall be made as soon as practicable after all of the conditions to
the Share Exchange specified in Section 5(b) below have been
satisfied. The time of such effectiveness shall herein be referred
to as the “Effective Time.”
(b) Consummation of the Share
Exchange is conditioned upon (i) the approval of this Agreement and
Plan of Share Exchange by the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Company Common Stock,
(ii) the receipt of the r
