AGREEMENT OF MERGER
THIS
AGREEMENT OF MERGER (this “Agreement”) is executed as of November 26, 1997 by
and between VALLEY RADIOLOGISTIS MEDICAL GROUP, INC., a California corporation
(the “Company”), and VALLEY IMAGING PARTNERS, INC., a California corporation
(“APPI Sub”) which is a wholly owned subsidiary of American Physician Partners,
Inc., a Delaware corporation (“APPI”).
RECITAL
This
Agreement is being entered into pursuant to an Agreement and Plan of
Reorganization and Merger dated as of June 27, 1997 by and among APPI, APPI Sub
and the Company (the “Merger Plan”). The Merger Plan, all agreements or
documents referred to therein, and this Agreement are intended to be construed
together in order to effectuate their purposes.
The
authorized capital stock of the Company consists of 100,000 shares of common
stock (the “Company Common Stock”). The authorized capital of APPI Sub consists
of one thousand (1,000) shares of common stock (the “APPI Sub Common Stock”).
The authorized capital of APPI consists of 20,000,000 shares of common stock
(the “APPI Common Stock”).
AGREEMENT
NOW,
THEREFORE, in consideration of the preceding recitals and the mutual
representations, warranties, covenants and agreements set forth herein and in
the Merger Plan, the parties agree as follows:
1. The
Merger.
1.1
Merger of APPI Sub into the Company. At
the Effective Time (as defined in Section
1.5 herein), APPI Sub shall be merged with and into the Company (the
“Merger”) and thereafter the separate existence of APPI Sub shall cease. The
Company shall be the surviving corporation in the Merger (the “Surviving
Corporation”) and its separate corporate existence, with all its purposes,
objects, rights, privileges, powers, and franchises shall continue unaffected
and unimpaired by the Merger.
1.2 Effect of the Merger. The
Surviving Corporation shall succeed to all of the rights, privileges, powers and
franchises of APPI Sub, and all of the debts, chooses in action and other
interests due or belonging to APPI Sub, all as more fully set forth in Section
1107 of the California General Corporation Law (the “California
Law”).
1.3 Additional Actions. If, at any
time after the Effective Time, the Surviving Corporation shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of APPI Sub acquired or
to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger or to otherwise carry out this Agreement, the officers and
directors of Surviving Corporation shall and will be authorized to execute and
deliver, in the name of and on behalf of the Company and APPI Sub or otherwise,
all such deeds, bills of sale, assignments and assurances and to take and do, in
the name and on behalf of the Surviving Corporation or otherwise carry out this
Agreement.
-1-
1.4 Articles of Incorporation. On and after
the consummation of the Merger, the Articles of Incorporation of the Company
shall be amended and restated as set forth in Exhibit “A” attached hereto and
incorporated herein by this reference.
1.5 Bylaws. On and after the
consummation of the Merger, the Bylaws of APPI Sub as in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving Corporation,
until amended as provided therein or under the California Law.
1.6
Effective Time. If this Agreement is
duly adopted by the shareholders of the Company and APPI Sub in accordance with
the California Law and the respective Articles of Incorporation and Bylaws of
the Company and APPI Sub, is not terminated under Section 3.1 hereof, this
Agreement shall be filed under the California Law. In accordance with Section
1103 of the
California Law, the Merger shall become effective at the time and date on which
this Agreement is so filed under the California Law.
2. Conversion
of Securities.
2.1 Conversion of the Company
Common Stock. The manner of
converting shares of the Company Common Stock in the Merger shall be as
follows:
(a) As
a result of the Merger and without any action on the part of the holder thereof,
all shares of the Company Common Stock issued and outstanding at the Effective
Time (excluding shares held by APPI pursuant to Section 2.1(c) hereof) shall
cease to be outstanding and shall be cancelled and retired and shall cease to
exist, and each holder of a certificate or certificates representing any such
shares of the Company Common Stock
shall thereafter cease to have any rights with respect to such shares of the
Company Common Stock, except the right to receive, without interest (i) $4.00
cash for each share of Company Stock and (ii) 34.6467 shares of validly issued,
fully paid and nonassessable shares of APPI Common Stock for each share of
Company Common Stock (the “Merger Consideration”).
(b) Each
Company Right (as defined below) outstanding at the Effective Time shall be
terminated and cancelled in accordance with the terms therof, without payment of
any consideration therefor, and shall cease to exist. For purposes of this
Agreement, the term “Company Right” shall mean all arrangements, calls,
commitments, agreements, options, rights to subscribe to, scrips,
understandings, warrants, or other binding obligations of any character
whatsoever relating to or securities or rights convertible into or exchangeable
for, shares of the Company Common Stock, or by which the Company is or may be
bound to issue additional shares of the Company Common Stock or other Company Rights.
(c) Each
share of APPI Sub Common Stock issued and outstanding at the Effective Time
shall be converted to one share of the Company Common Stock.
-2-
2.2 Exchange
of Certificates Representing Shares of the Company Common Stock.
(a) At
or after the Effective Time and at the Closing (as defined in the Merger Plan)
(i) each of the shareholders of the Company (the “Company Shareholders”), as
holders of a certificate or certificates representing shares of the Company
Common Stock, shall upon surrender of each certificate or certificates receive
his or her share of the Merger Consideration and (ii) until each certificate or
certificates representing the Company Common Stock have been surrendered by the
shareholder, the certificates for the Company Common Stock shall, for all
purpose, represent solely the right to receive his or her share of the Merger
Consideration. At the Effective Time, each share of the Company Common Stock
converted into Merger Consideration shall by virtue of the Merger and without
any action on the part of the holders thereof, cease to be outstanding, be
cancelled and returned and all shares of APPI Common Stock issuable to the
Company Shareholders in the Merger as part of the Merger Consideration shall be
deemed for all purposes to have been issued by APPI at the Effective
Time.
(b) Each
Company Shareholder shall deliver to APPI at the Closing the certificates
representing the Company Common Stock owned by him or her, duty endorsed in
blank by the Company Shareholder, or accompanied by duly executed stock powers
in blank, and with all necessary transfer tax and other revenue stamps, acquired
at the Company Shareholders’ expense, affixed and cancelled. Each Company
Shareholder agrees to cure any deficiencies with respect to the endorsement of
the certificates or other documents of conveyance with respect to such Company
Common Stock or with respect to the stock powers accompanying any Company Common
Stock, Upon such delivery, each Company Shareholder shall receive in exchange
therefor his or her share of the Merger Consideration.
2.3 Fractional Shares.
Notwithstanding any other provision herein, no fractional shares of APPI Common
Stock will be issued and any Company Shareholder otherwise entitled to receive a
fractional share of APPI Common Stock as part of the Merger Consideration
hereunder shall receive a cash payment in lieu thereof reflecting such Company
Shareholder’s proportionate interest in a share of APPI Common Stock multiplied
by the Initial Public Offering Price (as defined in the Merger
Plan).
2.4 Dissenting Shares.
Notwithstanding anything in this Agreement to the contrary, the Company Common
Stock with respect to which a proper demand has been made in accordance with
Section 1301 of the California Law shall not be converted into the right to
receive Merger Consideration as provided in Section 2.1
and 2.3 hereof, unless (i) such shares shall
not become “dissenting shares” pursuant to Section 1300(b) of the California
Law, or (ii) the holder thereof shall have lost his or her status as a
“dissenting shareholder” pursuant to Section 1309 of the California Law. Each
holder of dissenting shares who becomes entitled to payment therefor pursuant to
the California Law shall receive payment from the Surviving Corporation in
accordance with the California Law.
3. Amendment
and Termination.
3.1
Termination.
Notwithstanding the approval and adoption of this Agreement by the shareholders
of the Company and APPI Sub, this Agreement shall terminate forthwith in the
event the Merger Plan shall be terminated as therein provided. In the event of
the termination of this Agreement as provided above, this Agreement shall
forthwith become void and there shall be no liability on the part of the parties
hereto except as otherwise provided in the Merger Plan.
3.2 Amendment. This Agreement
shall not be amended except pursuant to an amendment to the Merger Plan approved
in the manner therein provided. If any such amendment to the Merger Plan is so
approved, any amendment to this Agreement required by such amendment to the
Merger Plan shall be effected by the parties hereto by action taken by their
respective Boards of Directors.
-3-
4. Miscellaneous.
4.1 Counterparts; Delivery. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. Delivery of this Agreement may be made by facsimile transmission of
a signed counterpart copy.
4.2
Choice of Law. This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed and
enforced in accordance with the substantive laws (but not the rules governing
conflicts of laws) of the State of California.
[Signature Page to Agreement
of Merger Follows]
-4-
[Signature Page to Agreement
of Merger]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
date first written above.
|
“Company”
|
||
|
VALLEY
RADIOLOGISTS MEDICAL GROUP, INC., a
California
corporation
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxxxxx, M.D.
|
|
|
Title:
|
President
|
|
|
By:
|
/s/
Xxxxxxx X.
Xxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxx,
M.D.
|
|
|
Title:
|
Secretary
|
|
|
“APPI
SUB”
|
||
|
VALLEY
IMAGING PARTNERS, INC., a California
corporation
|
||
|
By:
|
/s/
Xxxxxxx X.
Xxxxxxx
|
|
|
Xxxxxxx X.
Xxxxxxx, President
|
||
|
By:
|
/s/
Xxxx X. Xxxxx
|
|
|
Xxxx
X. Xxxxx,
Secretary
|
||
EXHIBIT
“A”
AMENDED
AND RESTATED ARTICLES OF INCORPORATION
ONE: The name of the
Corporation is VALLEY IMAGING PARTNERS, INC.
TWO: The purpose of the
Corporation is to engage in any lawful act or activity for which a corporation
may be organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
THREE: The Corporation is
authorized to issue one thousand (1,000) shares of Common Stock of one
class.
FOUR: The liability of the
directors of the corporation for monetary damages shall be eliminated to the
fullest extent permissible under California law.
FIVE: The Corporation is
authorized to provide indemnification of agents (as defined in Section 317 of
the California Corporations Code) through bylaw provisions, agreements with the
agents, vote of shareholders or disinterested directors or otherwise, in excess
of the indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to applicable limits set forth in Section 204 of
the California Corporations Code with respect to actions for breach of duty to
the Corporation and its shareholders.
CERTIFICATE
OF APPROVAL
OF
OF
VALLEY
IMAGING PARTNERS, INC.
Xxxxxxx
X. Xxxxxxx and Xxxx X. Xxxxx certify that:
1. They
are the President and Secretary, respectively, of VALLEY IMAGING PARTNERS, INC.,
a California corporation (the “Corporation”).
2. The
Agreement of Merger dated November 26, 1997 to which this Certificate is
attached (the “Agreement of Merger”) was duly approved by the Board of Directors
and Shareholders of the Corporation and by its sole shareholder, AMERICAN
PHYSICIAN PARTNERS, INC., a Delaware corporation (“APPI”).
3. The
Shareholders’ approval was by holders of one hundred percent (100%) of the
outstanding shares of the Corporation.
4. There
is only one class of shares and the number of shares outstanding and entitled to
vote is one hundred (100).
[Signature Page to
Certificate of Approval Follows]
[Signature Page to
Certificate of Approval]
We
further declare under penalty of perjury that the matters set forth in the
foregoing certificate are true and correct of our own knowledge. Executed at
Dallas, Texas on November 26, 1997.
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxx, President
|
|
|
/s/
Xxxx X. Xxxxx
|
|
|
Xxxx
X. Xxxxx,
Secretary
|
OFFICERS’
CERTIFICATE OF MERGER
FOR
VALLEY
RADIOLOGISTS MEDICAL GROUP, INC.
The
undersigned, Xxxxxxx X. Xxxxxxxxxxx, M.D., and Xxxxxxx X. Xxxxx, M.D., do hereby
certify that:
1. They
are now, and at all times herein mentioned were, the duly elected and qualified
President and Secretary, respectively, of Valley Radiologists Medical Group,
Inc., a professional corporation organized and existing under the laws of the
State of California (the “Company”).
2. On
November 3, 1997 the principal terms of the Agreement of Merger in the form
attached hereto were approved by the Company by a vote of a number of shares of
each class which equaled or exceeded the vote required under the General
Corporation Law of California.
3. The
total number of outstanding shares of each class of the Company entitled to vote
on the merger was and is:
19,937.5
Shares capital stock (common)
4. Each
class of shares of the Company entitled to vote on the Agreement of Merger, the
percentage vote required by each class, and the number and percentage of
affirmative votes cast by each class is as follows:
|
Percentage
|
Percentage
|
|||||||||
|
Vote
|
Affirmative
|
Vote
|
||||||||
|
Class
|
Required
|
Votes
Cast
|
Obtained
|
|||||||
|
Common
|
50%
plus 1
|
17,937.5 | 89.97 | % | ||||||
We
declare under penalty of perjury that the foregoing matters stated in this
certificate are true of our own knowledge.
Executed
at San Jose, California, on November 19, 1997.
|
/s/
Xxxxxxx X. Xxxxxxxxxxx
|
|
|
XXXXXXX
X. XXXXXXXXXXX, M.D.
|
|
|
President
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
XXXXXXX
X. XXXXX, M.D.
|
|
|
Secretary
|
