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EXHIBIT 3.5
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
HEALTHTRONICS, INC. AND
OSSATRONICS, INC.
This Agreement and Plan of Merger made and entered into this 31st day
of December, 1995, (hereinafter referred to as the "Agreement") by and between
HEALTHTRONICS, INC., a Georgia corporation (hereinafter sometimes referred to as
"HealthTronics") and OSSATRONICS, INC., a Georgia corporation (hereinafter
sometimes referred to as "OssaTronics") (said corporations being hereinafter
sometimes referred to as the "Constituent Corporations"):
W I T N E S S E T H:
WHEREAS, HealthTronics, Inc. is a corporation duly organized and
validly existing under the laws of the State of Georgia; and
WHEREAS, OssaTronics, Inc. is a corporation duly organized and validly
existing under the laws of the State of Georgia; and
WHEREAS, the Boards of Directors of each of said corporations deem it
advisable and for the benefit of each of said corporations and their respective
shareholders that OssaTronics, Inc. merge itself into HealthTronics, Inc.
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements, promises and covenants hereinafter contained, it is hereby
agreed by and between the parties hereto subject to the approval and adoption of
this Agreement by the respective shareholders of each of the Constituent
Corporations, and subject to the conditions hereinafter set forth, that
OssaTronics, Inc. be merged into HealthTronics, Inc. (hereinafter sometimes
referred to as the "Surviving Corporation"), the corporate existence of which
shall be continued under the same name, and thereafter the individual existence
of OssaTronics, Inc. shall cease. The terms and conditions of the merger hereby
agreed upon and the mode of carrying the same into effect and the manner of
converting the shares of OssaTronics, Inc. into securities of the Surviving
Corporation are and shall be as follows:
1.
The acts and things required to be done by the Georgia Business
Corporation Code (the "Code") in order to make this Agreement effective,
including the submission of this Agreement to the shareholders of both of the
Constituent Corporations and the filing of the Articles of Merger or Certificate
of Merger in the manner provided for in the Code, shall be attended to and done
by the proper officers of the Constituent Corporations as soon as practicable.
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2.
The Articles of Incorporation of HealthTronics, Inc. shall on the
effective date of the merger (the "Effective Date") be the Articles of
Incorporation of the Surviving Corporation, and in addition to the powers
conferred on it by statute, the Surviving Corporation shall have the powers set
forth therein and shall be governed by the provisions thereof.
3.
The Bylaws of HealthTronics, Inc. shall include the following
provisions:
1. Any increase of capital must be approved by at least 80% of
the voting shares.
2. Dilution of voting shares must be avoided by granting a right
of first refusal to the current holder of voting shares.
3. The decision of going public must be approved by at least 80%
of the shares entitled to vote.
4. Mergers with or acquisitions of other companies must be
approved by at least 80% of the voting shares.
5. Changes in the target and charter of the company must be
approved by at least 80% of the shares entitled to vote.
6. The Board of Director is limited to five (5) positions. 20% of
the voting shares shall be sufficient to elect one member of
the board.
4.
Upon the merger contemplated herein becoming effective, the directors
of the Surviving Corporation shall be nominated by the shareholders entitled to
vote and the election shall be subject to the Bylaws of the surviving
corporation. These persons shall hold office until the next annual meeting of
the shareholders of the Surviving Corporation and until their respective
successors are elected in accordance with the Bylaws of the Surviving
Corporation.
5.
Prior to the Effective Date of the merger ownership is as follows:
1. OSSATRONICS 2. HEALTHTRONICS
----------- -------------
Xxxx Xxxxx Xxxxxx 33% (33,000 shares) Xxxx-Xxxxx Xxxxxx 33.34%
Xxxx X. Xxxxxxx 26% (26,000 shares) Xxxx X. Xxxxxxx 33.33%
Xxxxx Xxxxxxxx MD 26% (26,000 shares) Xxx X. Xxxxx 33.33%
Xxx X. Xxxxx 5% (5,000 shares)
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OSSATRONICS (cont.)
-------------------
Xxx Xxxxxx 5% (5,000 shares)
Xxxxx X. Xxxxxxx 5% (5,000 shares)
b.) Upon the effective date of the merger, ownership of the HealthTronics,
Inc. stock shall be as follows:
Xxxx-Xxxxx Xxxxxx 33.17% (33,170 shares)
Xxxx X. Xxxxxxx 29.66% (29,660 shares)
Xxx X. Xxxxx 19.17% (19,170 shares)
Xxxxx Xxxxxxxx 13% (13,000 shares)
Xxx Xxxxxx 2.5% (2,500 shares)
Xxxxx X. Xxxxxxx 2.5% (2,500 shares)
6.
Upon the Effective Date, every other corporation party to the merger
shall merge into the Surviving Corporation and the separate existence of every
corporation except the Surviving Corporation shall cease, and in accordance with
the terms of this Agreement, the title to all real estate and other property
owned by each corporation party to the merger shall be vested in the Surviving
Corporation without reversion or impairment; the Surviving Corporation shall
have all of the liabilities of each corporation party to the merger; any
proceeding pending against any corporation party to the merger may be continued
as if the merger did not occur or the Surviving Corporation may be substituted
in the proceeding for the corporation whose existence ceased; and the shares of
each corporation party to the merger that are to be converted into shares,
obligations, or other securities or the Surviving Corporation or any other
corporation or into cash or other property shall be converted and the former
holders of the shares shall be entitled only to the rights provided in this
Agreement or to their rights under Article 13 of the Code.
7.
If at any time the Surviving Corporation determines that further
assignments or other things are necessary or desirable to transfer property or
rights from OssaTronics to HealthTronics the proper officers and directors of
OssaTronics, Inc. shall execute and make all such proper assignments and
assurances and do all things necessary or proper to vest title in such property
or rights in the Surviving Corporation and otherwise to carry out the purposes
of this Agreement.
8.
From the date of this Agreement until the Effective Date or until the
abandonment of the merger pursuant to the provisions hereof:
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(a) OssaTronics, Inc. and HealthTronics, Inc. shall continue to
conduct their respective businesses in the ordinary course, and neither
OssaTronics, Inc. nor HealthTronics, Inc. shall, without the prior written
consent of the other, engage in any transaction or incur any obligation except
in the ordinary course of business or as otherwise authorized by this Agreement.
Without limiting the foregoing, neither OssaTronics, Inc. nor HealthTronics,
Inc. shall during the foregoing period, without the prior consent of the other:
(i) amend its Articles of Incorporation, except as may be
necessary to carry out this Agreement or as required by law.
(ii) borrow any money, other than short term borrowings in
the ordinary course of business.
(iii) issue, sell, encumber, or otherwise dispose of any
shares of its capital stock.
(iv) declare, authorize, or pay any dividend on, make any
distribution in respect of, redeem or acquire for value any shares of its
capital stock, directly or indirectly.
(v) sell, lease, or otherwise dispose of any part of its
property or assets, except in the ordinary course of business; enter into any
new plans or agreements for the benefit of officers or employees or increase the
benefits under any existing such plan.
(vi) make any purchase of real estate, personal property,
merchandise, or securities, except in the ordinary course of business.
(b) OssaTronics, Inc. and HealthTronics, Inc. shall each make
available for examination by the other as requested, in addition to its audited
financial statements, any inventory and other detailed records in support of
such statements; records of important contracts, commitments, leases, licensing
agreements, deeds, title insurance policies, patents, trademarks, and other
evidence of interest or ownership in property; details and status of the various
funds, plans, profit sharing and deferred compensation agreements, if any, stock
option plans and other provisions of either party for the benefit of its
officers and employees, income tax returns, audit material and related data;
information concerning claims, litigation threatened or pending, and all other
information relevant to their respective businesses and to the merger herein
contemplated.
9.
OssaTronics, Inc. represents and warrants to HealthTronics, Inc. as
follows:
(a) OssaTronics, Inc. is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Georgia, has full
corporate power to carry on its business as it is now being conducted and to own
and operate the properties and assets now owned or operated by it and is
duly qualified to do business and is in good standing in Georgia.
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(b) All of the outstanding shares of OssaTronics, Inc. are validly
issued, fully paid and non-assessable.
10.
HealthTronics, Inc. represents and warrants to OssaTronics, Inc. as
follows:
(a) HealthTronics, Inc. is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Georgia, has full
corporate power to carry on its business as it is now being conducted and to own
and operate the properties and assets now owned or operated by it and is duly
qualified to do business and is in good standing in each jurisdiction where the
conduct of its business or the ownership of its property requires such
qualification.
(b) All of the outstanding shares of HealthTronics, Inc. are
validly issued but not shown by certificates, fully paid, and non-assessable.
(c) The execution of this Agreement has been duly authorized by
the Board of Directors of HealthTronics, Inc., and no further corporate action
is necessary for the execution hereof. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions provided for herein
will violate any material agreement to which HealthTronics, Inc. is a party or
by which it is bound or any provision of the Articles of Incorporation or Bylaws
of HealthTronics, Inc. or any law, order, or decree (except that such
consummation is subject to shareholder approval as set forth herein).
(d) Except to the extent heretofore disclosed to OssaTronics, Inc.
in writing, HealthTronics, Inc. is not a party to any agreement or instrument or
subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree, rule, or regulation which materially and adversely
affects, or so far as HealthTronics, Inc. can now foresee, may in the future
materially and adversely affect the business operations, prospects, properties,
assets, or condition, financial or otherwise, of HealthTronics, Inc.
11.
Anything herein to the contrary notwithstanding, this Agreement may be
terminated and abandoned at any time prior to the filing of the Articles of
Merger:
(a) By mutual consent of the Board of Directors of both
Constituent Corporations, expressed in an instrument in writing signed on behalf
of each by its Board of Directors.
(b) By the Board of Directors of either corporation if the other
shall pay or declare any dividend on its outstanding shares or shall in any way
alter its capital structure, between the date hereof and the effective date.
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In the event of termination or abandonment as herein provided, the
party so electing shall give written notice thereof to the other party to this
Agreement.
12.
If the merger contemplated hereby becomes effective, all expenses
incurred hereunder shall be borne by the Surviving Corporation. If, for any
reason other than breach of the covenants of the parties set forth herein, the
merger shall not become effective or shall be abandoned, then each of the
Constituent Corporations shall bear its own expenses, separately incurred in
connection herewith, with no liability to the other party hereto, and each shall
pay one-half of the expenses incurred by them jointly.
13.
All notices, waivers, consents, or requests required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on the
date of delivery or when deposited in the United States mail, postage prepaid,
in an envelope properly addressed as follows:
(a) In the case of HealthTronics, Inc., to: Xxx X. Brown_______________
(b) In the case of OssaTronics, Inc., to: Xxxx Warlick_______________
IN WITNESS WHEREOF, HealthTronics, Inc. and OssaTronics, Inc. have each
caused this Agreement and Plan of Merger to be executed on their respective
behalf and their respective corporate seals affixed and the foregoing attested,
all by their respective duly authorized officers on the 4th day of March, 1995.
ATTEST: HEALTHTRONICS, INC.
/s/ BY: /s/ Xxx X. Xxxxx
------------------------------- -------------------------------
Xxx X. Xxxxx (President)
ATTEST: OSSATRONICS, INC.
/s/ BY: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx (President)
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SHAREHOLDERS OF HEALTHTRONICS, INC.
ATTEST:
/s/ /s/ Xxxx X. Xxxxxxx
----------------------------- -----------------------------
XXXX X. XXXXXXX
ATTEST:
/s/ /s/ Xxxx-Xxxxx Xxxxxx
----------------------------- -----------------------------
XXXX-XXXXX XXXXXX
ATTEST:
/s/ /s/ Xxx X. Xxxxx
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XXX X. XXXXX
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SHAREHOLDERS OF HEALTHTRONICS, INC.
ATTEST:
/s/ /s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
ATTEST:
/s/ /s/ XXXXX XXXXXXXX
--------------------- ----------------------------
XXXXX XXXXXXXX
ATTEST:
/s/ /s/ XXXX-XXXXX XXXXXX
--------------------- ----------------------------
XXXX-XXXXX XXXXXX
ATTEST:
/s/ /s/ XXX X. XXXXX
--------------------- ----------------------------
XXX X. XXXXX
ATTEST:
/s/ /s/ XXX XXXXXX
--------------------- -----------------------------
XXX XXXXXX
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SHAREHOLDERS OF OSSATRONICS, INC.
ATTEST:
/s/ /s/ XXXX X. XXXXXXX
------------------------- -------------------------
XXXX X. XXXXXXX
ATTEST:
/s/ /s/ XXXXX XXXXXXXX
------------------------- -------------------------
XXXXX XXXXXXXX
ATTEST:
/s/ /s/ XXXX-XXXXX XXXXXX
------------------------- -------------------------
XXXX-XXXXX XXXXXX
ATTEST:
/s/ /s/ XXX X. XXXXX
------------------------- -------------------------
XXX X. XXXXX
ATTEST:
/s/ /s/ XXX XXXXXX
------------------------- -------------------------
XXX XXXXXX
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ARTICLES OF MERGER BETWEEN
OSSATRONICS, INC. AND HEALTHTRONICS, INC.
INTO HEALTHTRONICS, INC.
I.
Attached hereto as Exhibit "A" and by reference made a part hereof is the
Agreement and Plan of Merger duly approved and adopted by OSSATRONICS, INC.
and HEALTHTRONICS, INC.
II.
The Plan of Merger was duly approved by the unanimous vote of all
shareholders of OSSATRONICS, INC. and HEALTHTRONICS INC.
III.
The plan of Merger was adopted and approved by the Board of Directors for
OSSATRONICS, INC. and HEALTHTRONICS, INC.
IV.
The merger shall be effective at the time these Article of Merger are
delivered to the Secretary of State.
ATTEST:
(CORPORATE SEAL) OSSATRONICS, INC.
/s/ By: /s/ Xxxx X. Xxxxxxx
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Secretary Xxxx X. Xxxxxxx (President)
ATTEST:
(CORPORATE SEAL) HEALTHTRONICS, INC.
/s/ By: /s/ Xxx X. Xxxxx
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Secretary Xxx X. Xxxxx (President)
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SECRETARY OF STATE
BUSINESS INFORMATION AND SERVICES
SUITE 315, WEST TOWER
2 XXXXXX XXXXXX XXXX XX. DR. DOCKET NUMBER : 961350243
XXXXXXX, XXXXXXX 00000-0000 CONTROL NUMBER: 9535640
EFFECTIVE DATE: 04/29/1996
REFERENCE : 0045
PRINT DATE : 05/14/1996
FORM NUMBER : 411
XXXXX X. XXXXXXX
XXXXXXX, CAMP & XXXXXX
0000 XXXXXXX XX., X.X.
XXXXXX, XX 00000-0000
CERTIFICATE OF MERGER
I, the Secretary of State of the State of Georgia, do hereby issue this
certificate pursuant to Title 14 of the Official Code of Georgia Annotated
certifying that articles or a certificate of merger and fees have been filed
regarding the merger of the below entities, effective as of the date shown
above. Attached is a true and correct copy of said filing.
Surviving Entity:
HEALTHTRONICS, INC., A GEORGIA CORPORATION
Nonsurviving Entity/Entities:
OSSATRONICS, INC., A GEORGIA CORPORATION
[SEAL] /s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
SECRETARY OF STATE
