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EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
OF
NEW AMERICAN HEALTHCARE CORPORATION
(a Tennessee corporation)
WITH AND INTO
NAHC MERGER SUB, INC.
(a Delaware corporation)
AGREEMENT OF MERGER dated as of __________, 1998, by and between NEW
AMERICAN HEALTHCARE CORPORATION, a corporation organized and existing under the
laws of the State of Tennessee ("NAHC") and NAHC MERGER SUB, INC., a corporation
organized and existing under the laws of the state of Delaware ("Surviving
Corporation"), with reference to the following recitals:
WHEREAS, NAHC has an authorized capital stock consisting of 20,000,000
shares of common stock, par value $0.01 per share, of which 8,026,500 shares
have been duly issued and are now outstanding; 250,000 shares of Series A
Preferred Stock, of which 250,000 shares have been duly issued and are now
outstanding; and 235,000 shares of Series B Preferred Stock, of which 235,000
shares have been duly issued and are now outstanding,
WHEREAS, Surviving Corporation has an authorized capital stock
consisting of 50,000,000 shares of common stock, par value $0.01 per share, of
which 1,000 shares have been duly issued and are now outstanding, 1,000,000
shares of non-voting common stock of which no shares have been duly issued and
are now outstanding and 10,000,000 shares of preferred stock of which no shares
have been duly issued and are now outstanding, and
WHEREAS, the Board of Directors of NAHC and Surviving Corporation,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their respective shareholders that NAHC merge with
Surviving Corporation under and pursuant to the provisions of the Business
Corporation Law of Tennessee and of the General Corporation Law of the State of
Delaware.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits herein provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. NAHC shall be merged into Surviving Corporation.
2. EFFECTIVE DATE. This Agreement of Merger shall become effective
immediately prior to the initial public offering of the Surviving Corporation
and upon
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compliance with the laws of the States of Tennessee and Delaware, the time of
such effectiveness being hereinafter called the Effective Date.
3. SURVIVING CORPORATION. Surviving Corporation shall survive the
merger herein contemplated and shall continue to be governed by the laws of the
State of Delaware, but name of the Surviving Corporation shall be changed to New
American HealthCare Corporation. The separate corporate existence of NAHC shall
cease forthwith upon the Effective Date.
4. AUTHORIZED CAPITAL. The Authorized capital stock of Surviving
Corporation following the Effective Date shall be 50,000,000 shares of Common
Stock, par value $0.01 per share, 1,000,000 shares of non-voting common stock,
par value $0.01 per share and 10,000,000 shares of preferred stock unless and
until the same shall be changed in accordance with the laws of the State of
Delaware.
5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation set
forth as Appendix A hereto shall be the Certificate of Incorporation of
Surviving Corporation following the Effective Date unless and until the same
shall be amended or repealed in accordance with the provision thereof, which
power to amend or appeal is hereby expressly reserved, and all rights or powers
of whatsoever nature conferred in such Certificate of Incorporation or herein
upon any shareholder or director or officer of Surviving Corporation or upon any
other persons whomsoever are subject to the reserve power.
6. BYLAWS. The Bylaws of Surviving Corporation as they existed on the
Effective Date shall be the bylaws of the Surviving Corporation following the
Effective Date unless and until the same shall be amended or repealed in
accordance with the provisions thereof.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of Surviving Corporation immediately after the
effective time of the merger shall be those persons who were the members of the
Board of Directors and the officers, respectively, of NAHC immediately prior to
the effective time of the merger, and such persons shall serve in such offices
respectively for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. FURTHER ASSURANCE OF TITLE. If at any time Surviving Corporation
shall consider or be advised that any acknowledgments or assurances in law or
other similar actions are necessary or desirable in order to acknowledge or
confirm in and to Surviving Corporation any right, title, or interest of NAHC
held immediately prior to the Effective Date, NAHC and its proper officers and
directors shall and will execute and deliver all such acknowledgments or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title, or interest in Surviving Corporation as shall be
necessary to carry out the purposes of this Agreement of Merger, and Surviving
Corporation and the proper officers and directors thereof are fully authorized
to take any and all such action in the name of NAHC or otherwise.
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9. EXCHANGE OF NAHC COMMON STOCK. Forthwith upon the Effective Date,
each of the 8,026,500 shares of the common stock of NAHC presently issued and
outstanding shall be retired, and the holders of such stock shall be entitled to
receive 1.0473 shares of the common stock of Surviving Corporation for each
share of NAHC common stock owned.
10. EXCHANGE OF NAHC SERIES B PREFERRED STOCK. Forthwith upon the
Effective Date, the 235,000 shares of the Series B Preferred Stock of NAHC
presently owned by Welsh Xxxxxx Xxxxxxxx & Xxxxx VII, L.P. ("WCAS") shall be
retired, and WCAS shall be entitled to receive a total of 423,475 shares of the
non-voting common stock of Surviving Corporation and 3,520,487 shares of common
stock of the Surviving Corporation. Forthwith upon the Effective Date, each of
the 13,757 shares of Series B Preferred Stock of NAHC presently owned by holders
other than WCAS shall be retired and the holders of such stock shall be entitled
to receive 17.8264 shares of the common stock of Surviving Corporation for each
share of NAHC Series B Preferred Stock owned.
11. EXCHANGE OF NAHC SERIES A PREFERRED STOCK. Forthwith upon the
Effective Date, each of the 250,000 shares of the Series A Preferred Stock of
NAHC presently issued and outstanding shall be retired, and the holders of such
stock shall be entitled to receive $100, plus accrued dividends through the
Effective Date, in cash for each share of Series A Preferred Stock of NAHC
owned, out of the proceeds of the initial public offering of Surviving
Corporation.
12. EXCHANGE OF SURVIVING CORPORATION COMMON STOCK. Forthwith upon the
Effective Date, each of the 1,000 shares of the common stock of Surviving
Corporation presently issued and outstanding shall be canceled without any
action on the holder's part.
13. RIGHTS AND LIABILITIES OF SURVIVING CORPORATION. At and after the
effective time of the merger, Surviving Corporation shall succeed to and
possess, without further act or deed, all of the estate, rights, privileges,
powers, and franchises, both public and private, and all of the property, real,
personal, and mixed, of each of the parties hereto: all debts due to NAHC or
whatever account shall be vested in Surviving Corporation; all claims, demands,
property, rights, privileges, powers and franchises and every other interest of
either of the parties hereto shall be as effectively the property of Surviving
Corporation as they were of the respective parties hereto; the title to any real
estate vested by deed or otherwise in NAHC shall not revert or be in any way
impaired by reason of the merger, but shall be vested in Surviving Corporation;
all rights of creditors and all liens upon any property of either of the parties
hereto shall be preserved unimpaired, limited in lien to the property affected
by such lien at the effective time of the merger; all debts, liabilities, and
duties of the respective parties hereto shall thenceforth attach to Surviving
Corporation and may be enforced against it to the same extent as if such debts,
liabilities, and duties had been incurred or contracted by it.
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14. SERVICE OF PROCESS ON SURVIVING CORPORATION. Surviving Corporation
agrees that it may be served with process in the State of Tennessee in any
proceeding for enforcement of any obligation of NAHC as well as for the
enforcement of any obligation of Surviving Corporation arising from the merger,
including any suit or other proceeding to enforce the right of any shareholder
as determined in appraisal proceedings pursuant to the Business Corporation Law
of Tennessee.
15. TERMINATION. This Agreement of Merger may be terminated and
abandoned by action of the Board of Directors of NAHC at any time prior to the
Effective Date, whether before or after approval by the shareholders of the two
corporate parties hereto.
16. PLAN OF REINCORPORATION. This Agreement of Merger constitutes a
Plan of Reincorporation to be carried out in the manner, on the terms and
subject to the conditions herein set forth.
IN WITNESS WHEREOF each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement of
Merger to be executed by an authorized officer, Xxxxxx X. Xxxxxx and Xxxx X.
XxXxxxxx, Xx., respectively.
NEW AMERICAN HEALTHCARE CORPORATION
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Xxxxxx X. Xxxxxx, Chief Executive Officer
NAHC MERGER SUB, INC.
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Xxxx X. XxXxxxxx, Xx., President
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