Exhibit 3.188
State of Delaware Secretary of State Division of Corporations Delivered 07:57 AM 01/27/2014 FILED 08:00 AM 01/27/2014 SRV 140091343 - 0879607 FILE |
CERTIFICATE OF MERGER
of
FWCT-2 ACQUISITION CORPORATION,
a Delaware corporation,
with and into
HEALTH MANAGEMENT ASSOCIATES, INC.,
a Delaware corporation
Pursuant to Section 251(c) of the General Corporation Law of the State of Delaware (the “DGCL”), Health Management Associates, Inc., a Delaware corporation (the “Company”), hereby certifies the following in connection with the merger of FWCT-2 Acquisition Corporation, a Delaware corporation, with and into the Company (the “Merger”):
FIRST: The name and state of incorporation of each of the constituent corporations to the Merger (collectively, the “Constituent Corporations”) is:
Name | State of Incorporation | |
Health Management Associates, Inc. | Delaware | |
FWCT-2 Acquisition Corporation | Delaware | |
SECOND: An Agreement and Plan of Merger (the “Merger Agreement”), dated as of July 29, 2013, by and among the Constituent Corporations and Community Health Systems, Inc., a Delaware corporation, has been approved, adopted, executed and acknowledged by each of the Constituent Corporations in accordance with Section 251(c) of the DGCL.
THIRD: The Company shall be the surviving corporation in the Merger (the “Surviving Corporation”) and the name of the Surviving Corporation shall be “Health Management Associates, Inc.”
FOURTH: The Certificate of Incorporation of the Company, as in effect immediately prior to the filing of this Certificate of Merger with the Secretary of State of the State of Delaware, shall be amended and restated at the effective time of the Merger to read in its entirety as set forth onExhibit A attached hereto and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation.
FIFTH: An executed copy of the Merger Agreement is on file at the office of the Surviving Corporation located at 5811 Pelican Bay Boulevard, Suite 500, Naples, Florida 34108.
SIXTH: A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either of the Constituent Corporations.
SEVENTH:The Merger shall be effective upon the filing of this Certificate of Merger with the Secretary of State of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Merger on behalf of Health Management Associates, Inc. this 27th day of January, 2014.
| HEALTH MANAGEMENT ASSOCIATES, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ Steven E. Clifton | |||
| ||||
| Name: | Steven E. Clifton | |||
| Title: | Senior Vice President | |||
Exhibit A
AMEND RESTATED CERTIFICATE OF INCORPORATION
OF
HEALTH MANAGEMENT ASSOCIATES, INC.
(Attached)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HEALTH MANAGEMENT ASSOCIATES, INC.
ARTICLE ONE
The name of the corporation is Health Management Associates, Inc. (hereinafter called the “Corporation”).
ARTICLE TWO
The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is Corporation Service Company.
ARTICLE THREE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
The total number of shares which the Corporation shall have the authority to issue is one thousand (1,000) shares, all of which shall be shares of Common Stock, with a par value of $0.01 (one cent) per share.
ARTICLE FIVE
The directors shall have the power to adopt, amend or repeal Bylaws, except as may otherwise be provided in the Bylaws.
ARTICLE SIX
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.
ARTICLE SEVEN
Section 1.Limitation of Liability. A member of the Corporation’s Board of Directors shall not be personally liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liability of the director (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of the State of Delaware, relating to the payment of unlawful dividends or unlawful stock repurchases or redemptions, or (d) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is hereafter amended to further eliminate or limit the liability of a director of a corporation, then a director of the Corporation, in addition to the circumstances set forth herein, shall have no liability as a director (or such liability shall be limited) to the fullest extent permitted by the General Corporation Law of the State of Delaware as so amended. No repeal or modification of the foregoing provisions of this Article Seven nor, to the fullest extent permitted by law, any modification of law, shall adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
Section 2.Nature of Indemnity. Each person who was or is made a party or is threatened to be made party to or is otherwise 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, agent or fiduciary of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or fiduciary or in any other capacity while serving as a director, officer, employee, agent or fiduciary, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, 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 such 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 in settlement) reasonably incurred or suffered by the indemnitee in connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators;provided, however, that, except as provided in Section 3 of this Article Seven with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred by this Article Seven 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 (hereinafter an “advancement of expenses”);provided, however, that, if the General Corporation Law of the State of Delaware so requires, an advancement of expenses incurred by an indemnitee 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 indemnitee, including without limitation service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Article Seven or otherwise.
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Section 3.Procedure for Indemnification. If a claim under Section 2 of this Article Seven is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In any suit brought by an indemnitee to enforce a right to indemnification hereunder (other than a suit brought by an indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. In any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware. 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 suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense of such a suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to such indemnification or to such advancement of expenses, under this Article Seven or otherwise, shall be on the Corporation.
Section 4.Nonexclusively of Article Seven. The rights to indemnification and to the advancement of expenses conferred by this Article Seven shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, as amended or supplemented, by-law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5.Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee, agent or fiduciary 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 General Corporation Law of the State of Delaware or under this Article Seven.
Section 6.Expenses. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article Seven with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
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Section 7.Employees and Agents. Persons who are not covered by the foregoing provisions of this Article Seven and who are or were employees or agents of the Corporation, or who are or were serving at the request of the Corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board of Directors.
Section 8.Contract Rights. The provisions of this Article Seven shall be deemed to be a contract right between the Corporation and each director or officer who serves in any such capacity at any time while this Article Seven and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article Seven or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.
Section 9.Merger or Consolidation. For purposes of this Article Seven, references to the Corporation shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article Seven with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
ARTICLE EIGHT
The Corporation reserves the right to amend or repeal any provisions contained in this Certificate of Incorporation from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders and directors are granted subject to such reservation.
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