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8-K - FORM 8-K - ALLIED HEALTHCARE INTERNATIONAL INC | c23516e8vk.htm |
EX-99.1 - EXHIBIT 99.1 - ALLIED HEALTHCARE INTERNATIONAL INC | c23516exv99w1.htm |
Exhibit 2.1
CERTIFICATE OF MERGER
OF
AHL ACQUISITION CORP.
INTO
ALLIED HEALTHCARE INTERNATIONAL INC.
Under Section 904 of the Business Corporation Law
It is hereby certified upon behalf of each of the constituent corporations herein named, each
of which is organized and existing under and by virtue of the Business Corporation Law of the State
of New York, as follows:
FIRST: The name of the constituent corporation which is to be the surviving corporation in
the merger is Allied Healthcare International Inc. and the name under which it was formed is United
States Home Health Care Corp. The date upon which its certificate of incorporation was filed by
the Department of State is November 30, 1981.
SECOND: The name of the other constituent corporation, which is being merged into Allied
Healthcare International Inc., is AHL Acquisition Corp. The date upon which its certificate of
incorporation was filed by the Department of State is July 28, 2011.
THIRD: As to each constituent corporation, the designation and number of outstanding shares
of each class and series and the voting rights thereof are as follows:
Designation and | ||||||
number of shares in | ||||||
each class or series that | Class or series of | Shares entitled to vote | ||||
Name of Corporation | are outstanding | shares entitled to vote | as a class or series | |||
Allied Healthcare International Inc.
|
43,571,251 shares of common stock, par value $0.01 per share, are outstanding | Yes | No | |||
AHL Acquisition Corp.
|
100 shares of common stock, par value $0.01 per share, are outstanding | Yes | No |
FOURTH: The merger was authorized by Allied Healthcare International Inc., in accordance with
Sections 902 and 903 of the Business Corporation Law of the State of New York, by the unanimous
written consent of the board of directors of Allied Healthcare International Inc. and by the
affirmative vote of the holders of at least two-thirds of all outstanding shares of common stock of
Allied Healthcare International Inc. at a meeting of the shareholders.
FIFTH: The merger was authorized by AHL Acquisition Corp., in accordance with Sections 902
and 903 of the Business Corporation Law of the State of New York, by the unanimous written consent
of the board directors of AHL Acquisition Corp. and by the written consent of the sole shareholder
of AHL Acquisition Corp. in lieu of a meeting of shareholders pursuant to Section 615 of the
Business Corporation Law of the State of New York.
SIXTH: The certificate of incorporation of Allied Healthcare International Inc., as the
surviving corporation in the Merger, is amended as follows:
(a) Article SECOND of the certificate of incorporation of the surviving corporation, setting
forth the purpose for which it is formed, is amended to read in it entirety as follows:
SECOND: The corporation is formed to engage in any lawful act or
activity for which a corporation may be organized under the Business
Corporation Law of the State of New York, provided that it is not
formed to engage in any act or activity requiring the consent or
approval of any state official, department, board, agency or other
body without such consent or approval first being obtained.
(b) Article THIRD of the certificate of incorporation of the
surviving corporation, setting forth the county in the State of New
York in which the office of the surviving corporation is to be
located, is amended to read in its entirety as follows:
THIRD: The county, within this state, in which the office of the
corporation is to be located is New York.
(c) Article FOURTH of the certificate of incorporation of the
surviving corporation, relating to the aggregate number of shares
that it is authorized to issue, is amended to read in its entirety
as follows:
FOURTH: The total number of shares which the corporation shall have
authority to issue and a statement of the par value of each share
are one hundred shares with a par value of $0.01 each.
(d) Article FIFTH of the certificate of incorporation of the
surviving corporation, designating the Secretary of State as the
agent of the surviving corporation upon whom process against it may
be served and the post office address to which the Secretary of
State shall mail a copy of any process served against the surviving
corporation on the Secretary of State, is amended to read in its
entirety as follows:
FIFTH: The Secretary of State is designated as agent of the
corporation upon whom process against the corporation may be served.
The address to which the Secretary of State shall mail a copy of
any process accepted on behalf of the corporation is David Lakhdhir,
Paul Weiss LLP, 1285 Avenue of the Americas, New York, New York
10019.
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(e) Article SIXTH of the certificate of incorporation of the
surviving corporation, providing that the surviving corporation
shall have perpetual existence, is deleted.
(f) Article SEVENTH of the certificate of incorporation of the
surviving corporation, relating to the number of directors of the
surviving corporation and providing that election of directors need
not be by written ballot unless the by-laws so provide, is deleted.
(g) Article EIGHT of the certificate of incorporation surviving
corporation, setting forth limitations on liability of the directors
of the surviving corporation and providing for indemnification of
certain persons, is renumbered as Article SIXTH and a new section
(3), limiting the circumstances under which the corporation can
amend Article SIXTH and providing that the successors and assigns of
the corporation in the event of a merger or consolidation of the
corporation or the sale of all or substantially all of its assets
and the transferee of the corporations assets in the event of the
dissolution or liquidation of the corporation shall assume the
obligations set forth in Article SIXTH, is added. Such renumbered
Article SIXTH is amended to read in its entirety as follows:
SIXTH: (1) LIMITATION ON LIABILITY. A director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability determined by final judgment (i)
resulting from acts committed in bad faith or involving intentional
misconduct or a knowing violation of law, (ii) whereby the director
personally gained in fact a financial profit or other advantage to
which he was not legally entitled, or (iii) whereby the directors
acts violated Section 719 of the Business Corporation Law of the
State of New York. If the Business Corporation Law of the State of
New York is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Business
Corporation Law of the State of New York, as so amended. Any repeal
or modification of this section 1 by the stockholders of the
corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or
modification.
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(2) INDEMNIFICATION AND INSURANCE.
(a) Each person who was or is made a party or is threatened to be
made a party to or is or was involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she
or a person of whom he or she is the legal representative, is or was
a director or officer of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation to
the fullest extent authorized by the Business Corporation Law of the
State of New York as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorneys fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in
subsection 2(b) of this Article SIXTH with respect to proceedings
seeking to enforce rights to indemnification, the corporation shall
indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the board of
directors of the corporation. The right to indemnification
conferred in this section 2 shall be a contract right and shall
include the right to be paid by the corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Business Corporation Law
of the State of New York requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan)
in advance of the final disposition of a proceeding, shall be made
only upon delivery to the corporation of an undertaking by or on
behalf of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this section 2 or otherwise.
The corporation may, by action of its board of directors, provide
indemnification to employees and agents of the corporation with the
same scope and effect as the foregoing indemnification of directors
and officers.
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(b) If a claim under subsection 2(a) is not paid in full by the
corporation within thirty days after a written claim has been
received by the corporation, the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expenses of prosecuting such claim.
It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the applicable standard
of conduct set forth in Business Corporation Law of the State of New
York for the corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its
board of directors, independent legal counsel or stockholders) to
have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the Business Corporation Law of the State of New York, nor
an actual determination by the corporation (including its board of
directors, independent legal counsel or stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final
disposition conferred in this section 2 shall not be exclusive of
any other right which any person may have or hereafter acquire under
any statute, provision of this Restated Certificate of
Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the corporation would have the power to indemnify
such person against such expense, liability or loss under the
Business Corporation Law of the State of New York.
(3) GENERAL
(a) The provisions of this Article SIXTH shall not be amended,
repealed or otherwise modified in any manner that would adversely
affect the rights hereunder of those individuals identified as
Indemnitees in section 5.5 of the Agreement and Plan of Merger,
dated as of July 28, 2011, by and among Saga Group Limited, AHL
Acquisition Corp. and the corporation (the Merger Agreement), except as permitted by section 5.5 of the Merger
Agreement.
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(b) If the corporation or any of its successors or assigns (i)
consolidates with or merges into any other corporation or other
entity and shall not be the continuing or surviving corporation or
entity of such consolidation or merger or (ii) transfers or conveys
all or substantially all of its properties and assets to any
individual or entity or (iii) dissolves or liquidates, then, and in
each case, to the extent necessary, proper provision shall be made
so that the successors and assigns of the corporation or the
transferee of its assets upon dissolution or liquidation shall
assume the obligations set forth in this Article SIXTH. In
addition, the corporation shall not distribute, sell, transfer or
otherwise dispose of any assets in a manner that would reasonably be
expected to render the corporation or its successor unable to
satisfy its obligations under this Article SIXTH.
(h) Article NINTH of the certificate of incorporation of the
surviving corporation, providing that the directors of the surviving
corporation may take into account the interests of creditors,
customers, employees and other constituencies in determining whether
to take or to refrain from taking any action, is deleted.
(i) Article TENTH of the certificate of incorporation of the
surviving corporation, providing that the surviving corporation may
amend, alter, change or repeal any provision contained in the
certificate of incorporation, is deleted.
[The remainder of this page has intentionally been left blank.]
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IN WITNESS WHEREOF, the undersigned have executed this
Certificate of Merger on October 20, 2011.
AHL ACQUISITION CORP. |
||||
By: | /s/ John Davies | |||
Name: | John Davies | |||
Title: | Director | |||
ALLIED HEALTHCARE INTERNATIONAL INC. |
||||
By: | /s/ Sandy Young | |||
Name: | Sandy Young | |||
Title: | Chief Executive Officer |
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