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EXHIBIT 3.4
AGREEMENT AND PLAN OF MERGER
OF
NEW AMERICAN HEALTHCARE CORPORATION
(a Tennessee corporation)
WITH AND INTO
NAHC MERGER SUB, INC.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER dated as of August 19, 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.
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2. EFFECTIVE DATE. This Agreement and Plan of Merger is to be
effective on filing with the Delaware Secretary of State (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, 1,500,000 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 provisions 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 stockholder 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 Date 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 Date 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
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necessary to carry out the purposes of this Agreement and Plan 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.
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
in exchange for each share of NAHC common stock owned.
10. EXCHANGE OF NAHC SERIES B PREFERRED STOCK. Forthwith upon the
Effective Date, the 221,243 shares of the Series B Preferred Stock of NAHC
presently owned by Welsh Xxxxxx Xxxxxxxx & Xxxxx VII, L.P. ("WCAS") shall be
retired, and in exchange therefor WCAS shall be entitled to receive a total of
1,422,500 shares of the non-voting common stock of Surviving Corporation and
2,521,462 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 in exchange 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 in exchange for each share of Series A Preferred Stock
of NAHC owned, to be paid out of the proceeds of the above-referenced 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
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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.
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 and Plan 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 and Plan 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 and
Plan of Merger to be executed by an authorized officer, Xxxxxx X. Xxxxxx and
Xxxx X. XxXxxxxx, Xx., respectively.
NEW AMERICAN HEALTHCARE CORPORATION
/s/ XXXXXX X. XXXXXX
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Chief Executive Officer
NAHC MERGER SUB, INC.
/s/ XXXX X. XXXXXXXX, XX.
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Xxxx X. XxXxxxxx, Xx., President
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CERTIFICATE OF THE SECRETARY
OF
NAHC MERGER SUB, INC.
(a Delaware Corporation)
I, Xxxxxx X. Xxxxxx, the Secretary of NAHC Merger Sub, Inc., hereby
certify that the Agreement and Plan of Merger to which this certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary of said corporation, was duly approved and adopted
by the unanimous written consent of the sole stockholder of NAHC Merger Sub,
Inc.
WITNESS my hand and seal of said Secretary this 19th day of August,
1998.
/s/ XXXXXX X. XXXXXX
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Secretary
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