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EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of the
14th day of April, 1997 by and between Coventry Corporation, a Tennessee
corporation ("New Coventry"), and Coventry Corporation, a Delaware corporation
("Old Coventry") (collectively, the "Constituent Corporations").
RECITALS
WHEREAS, all of the issued and outstanding shares of capital stock of
New Coventry are owned beneficially and of record by Old Coventry;
WHEREAS, the sole purpose of the Plan of Merger embodied herein is to
effect a migratory merger within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended; and
WHEREAS, each of the Constituent Corporations has, subject to approval
by their respective shareholders, adopted the plan of merger embodied in this
Agreement, and the Constituent Corporations and their respective Boards of
Directors deem it advisable and in the best interest of each of the Constituent
Corporations that Old Coventry be merged with and into New Coventry pursuant to
the applicable corporation laws of Tennessee and Delaware.
AGREEMENT
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge,
on the terms and conditions herein provided, as follows:
1. THE MERGER.
1.1 Governing Law. Old Coventry shall be merged into New
Coventry in accordance with the applicable laws of the States of
Tennessee and Delaware. New Coventry shall be the surviving corporation
and shall be governed by the laws of the State of Tennessee.
1.2 Effective Date. The "Effective Date" of the merger shall
be, and such term as used herein shall mean the date on which Articles
of Merger prepared in accordance herewith are filed in the office of
the Secretary of State of Tennessee and a Certificate of Merger
prepared in accordance herewith is filed in the office of the Secretary
of State of Delaware, all after satisfaction of the requirements of
applicable laws of the states prerequisite to such filings.
2. SHARE CONVERSION.
2.1 Stock of Old Coventry. On the Effective Date, each share
of Common Stock of Old Coventry issued and outstanding immediately
prior to the merger shall automatically be converted into and become,
without further action by the holder thereof, one share of Common Stock
of New Coventry. As of and after the Effective Date, each outstanding
certificate which, prior to the Effective Date represented shares of
Common Stock of Old Coventry shall be deemed for all purposes to
evidence ownership of, and to represent an equal number of shares of
Common Stock of New Coventry.
2.2 Stock of New Coventry. Upon the Effective Date, by virtue
of the merger and without any action on the part of the holder thereof,
each share of Common Stock of New Coventry outstanding immediately
prior thereto shall be cancelled and returned to the status of
authorized but unissued shares.
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3. EFFECT OF THE MERGER.
3.1 Rights, Privileges, Etc. On the Effective Date, New
Coventry, without further act, deed or other transfer, shall retain or
succeed to, as the case may be, and possess and be vested with all the
rights, privileges, immunities, powers, franchises and authority, of a
public as well as of a private nature, of the Constituent Corporations;
all property of every description and every interest therein and all
debts and other obligations of or belonging to or due to the
Constituent Corporations on whatever account shall thereafter be taken
and deemed to be held by or transferred to, as the case may be, or
vested in New Coventry without further act or deed; title to any real
estate, or any interest therein, vested in the Constituent Corporations
shall not revert or in any way be impaired by reason of this merger,
and all of the rights of creditors of the Constituent Corporations
shall be preserved unimpaired, and all liens upon the property of the
Constituent Corporations shall be preserved unimpaired, and such debts,
liabilities, obligations and duties of the Constituent Corporations
shall thenceforth remain with or attach to, as the case may be, New
Coventry and may be enforced against it to the same extent as if all of
such debts, liabilities, obligations and duties had been incurred or
contracted by it.
3.2 Employee Benefit Plans. On the Effective Date, New
Coventry will automatically assume all obligations of Old Coventry
under any and all employee benefit plans in effect as of the Effective
Date or with respect to which employee rights or accrued benefits are
outstanding as of the Effective Date.
3.3 Charter and Bylaws. The Charter of New Coventry as in
effect on the Effective Date shall, from and after the Effective Date,
be and continue to be the Charter of New Coventry without change or
amendment until thereafter amended in accordance with the provisions
thereof and applicable laws. The Bylaws of New Coventry as in effect on
the Effective Date shall, from and after the Effective Date, be and
continue to be the Bylaws of New Coventry without change or amendment
until thereafter amended in accordance with the provisions thereof, the
Charter of New Coventry and applicable laws.
3.4 Directors and Officers. The directors and officers of Old
Coventry shall be the directors and officers of New Coventry on the
Effective Date, and such directors and officers shall serve until they
are removed or replaced in accordance with the Charter and Bylaws of
New Coventry.
3.5 Options, Warrants and Rights. Each outstanding option,
warrant or right to acquire shares of Common Stock of Old Coventry
which are not exercised prior to the Effective Date shall, at the
Effective Date, be converted into the right to acquire the same number
of shares of Common Stock of New Coventry subject to the terms,
conditions and provisions for adjustment to which such options,
warrants or rights were previously subject.
3.6 Further Action. From time to time, as and when requested
by New Coventry, or by its successors or assigns, any party hereto
shall execute and deliver or cause to be executed and delivered all
such deeds and other instruments, and shall take or cause to be taken
all such further or other actions, as New Coventry, or its successors
or assigns, may deem necessary or desirable in order to vest in and
confirm to New Coventry, and its successors or assigns, title to and
possession of all the property, rights, privileges, powers and
franchises referred to herein and otherwise to carry out the intent and
purposes of this Agreement.
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4. TERMINATION; AMENDMENT.
4.1 Termination Provision. Anything contained in this
Agreement to the contrary notwithstanding, this Agreement may be
terminated and the merger abandoned:
(a) Upon written notice at any time prior to the
Effective Date of the merger by either of the Constituent
Corporations; or
(b) If holders of at least a majority of the
outstanding shares of Common Stock of Old Coventry shall not
vote in favor of the merger.
4.2 Amendment Provisions. Anything contained in this Agreement
notwithstanding, this Agreement may be amended or modified in writing
at any time prior to the Effective Date; provided that, an amendment
made subsequent to the adoption of this Agreement by the shareholders
of the Constituent Corporations shall not (1) alter or change the
amount or kind of shares or other consideration to be received in
exchange for or on conversion of all or any of the shares of Common
Stock of the Constituent Corporations, (2) alter or change any term of
the Charter of New Coventry, or (3) alter or change any of the terms
and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of the
Constituent Corporations; provided, however, the Constituent
Corporations may by agreement in writing extend the time for
performance of, or waive compliance with, the conditions or agreements
set forth herein.
4.3 Board Action. In exercising their rights under this
Section 4, each of the Constituent Corporations may act by its Board of
Directors, and such rights may be so exercised, notwithstanding the
prior approval of this Agreement by the shareholders of the Constituent
Corporations.
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IN WITNESS WHEREOF, this Agreement, having first been duly approved by
resolutions of the Board of Directors of each of the Constituent Corporations,
is hereby executed on behalf of each of the Constituent Corporations by their
respective officers hereunto duly authorized.
COVENTRY CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXX
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Its: President and Chief Executive Officer
Attest: -------------------------------------
By: /s/ XXXXXXX X. XXXXX
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Its: Secretary
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COVENTRY CORPORATION,
a Tennessee corporation
By: /s/ XXXXX X. XXXX
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Its: President and Chief Executive Officer
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Attest:
By: /s/ XXXXXXX X. XXXXX
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Its: Secretary
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