EXHIBIT 2
---------
PLAN AND AGREEMENT OF MERGER
----------------------------
[Pursuant to (S)368(a)(1)(A) of the Internal Revenue Code of 1986 and
pursuant to Indiana Code 23-1-40-1 et. seq.]
--------
This Plan and Agreement of Merger is made and entered into this 28th day of
June, 1999, by and between OHIO VALLEY DIALYSIS CENTER, INC., an Indiana
corporation ("Ohio Valley" and in its post-merger form, the "Surviving
Corporation"), NORTHWEST INDIANA DIALYSIS CENTER, INC., an Indiana corporation
("NW Ind") and LAKE AVENUE DIALYSIS CENTER, INC., an Indiana corporation ("Lake
Avenue") ("NW Ind" and "Lake Avenue" sometimes referred to herein as the "Merged
Corporations") (Ohio Valley and the Merged Corporations hereinafter sometimes
referred to collectively as "Constituent Corporations").
R E C I T A L S :
1. The parties hereto deem that the purposes and objectives of the Constituent
Corporations may be effectively achieved and promoted within a single
corporate structure; and
2. The Board of Directors of each Constituent Corporation deems it advisable
that the Merged Corporations be merged with and into the Surviving
Corporation (the "Merger") on the terms and conditions hereinafter set
forth and in accordance with the applicable provisions of the Indiana Code,
as amended; and
NOW, THEREFORE, in consideration of the premises and of the agreements,
covenants, and conditions hereinafter set forth and for the purpose of fixing
and declaring the terms and conditions upon which the Constituent Corporations
are to be merged, and such other details or provisions as are deemed necessary
or desirable, the Constituent Corporations, by their Boards of Directors, hereby
agree as follows:
1
AGREEMENT
---------
ARTICLE I
---------
FORMATION OF MERGER
-------------------
This Plan and Agreement of Merger shall be submitted to and approved by the
board of directors as required and the stockholders of the Constituent
Corporations, as provided by 23-1-40-1 et.seq. of the Indiana Code, as amended,
and the Constituent Corporations shall execute, acknowledge, file, deliver and
record all necessary documents and take all actions and do all things necessary,
advisable or proper under the laws of Indiana to consummate and make effective
the Merger, including the filing of the Articles of Merger with the Indiana
Secretary of State, and to carry out the purposes of this Plan and Agreement of
Merger.
Anything herein or elsewhere to the contrary notwithstanding, this Agreement may
be abandoned by any of the Constituent Corporations by appropriate resolution of
its Board of Directors at any time prior to the Effective Time of the Merger.
ARTICLE II
----------
CORPORATE NAME
--------------
Upon the Effective Time of the Merger (hereinafter defined) and thereafter, the
name of the Surviving Corporation shall be Everest Healthcare Indiana, Inc.
ARTICLE III
-----------
EFFECT OF MERGER
----------------
Upon the Merger becoming effective:
(1) the Constituent Corporations shall be a single corporation;
(2) the separate corporate existence of the Merged Corporation shall cease,
except to the extent provided for by the laws of the State of Indiana
in the case of a corporation after its merger into another corporation;
(3) the Surviving Corporation shall possess all the rights, privileges,
immunities and franchises of each of the Constituent Corporations, and
all property, real, personal and mixed, and debts due on whatever
account, and every other interest belonging to or due to each of the
Constituent Corporations shall be deemed to be transferred to and
vested in the Surviving Corporation, without further act, deed or
transfer;
(4) the Surviving Corporation shall thenceforth be responsible for and
subject to all of
2
the debts, liabilities and obligations of each of the Constituent
Corporations in the same manner as if the Surviving Corporation had
itself incurred them;
(5) any claim, existing action, or proceeding pending by or against either
of the Constituent Corporations may be prosecuted to judgment by the
Surviving Corporation;
(6) neither the rights of creditors nor any liens upon the property of
either of the Constituent Corporations shall be impaired by the Merger.
ARTICLE IV
----------
MANNER AND BASIS OF CONVERTING SHARES
-------------------------------------
The manner and basis of converting the outstanding shares of the capital stock
of the Merged Corporations into the shares or other securities of the Surviving
Corporation shall be as follows: upon the Effective Time of the Merger, all of
the shares of the capital stock of the Merged Corporations shall then be
immediately cancelled and shall cease to exist and the outstanding shares of the
Surviving Corporation shall remain in effect.
ARTICLE V
---------
CERTIFICATE OF INCORPORATION AND BYLAWS
---------------------------------------
The Articles of Incorporation of the Surviving Corporation, existing on the
Effective Time of the Merger shall continue in full force as the Articles of
Incorporation of the Surviving Corporation until they are duly altered, amended
or repealed. The Bylaws of the Surviving Corporation existing on the Effective
Time of the Merger shall continue in full force as the Bylaws of the Surviving
Corporation until they are duly altered, amended or repealed.
ARTICLE VI
----------
BASIS FOR TRANSFERRING ASSETS AND LIABILITIES
---------------------------------------------
The assets and liabilities of the Merged Corporation, at the Effective Time of
the Merger, shall be taken on the books of the Surviving Corporation at the
amounts at which they are, on such date, carried on the books of the Merged
Corporation.
ARTICLE VII
-----------
DIRECTORS AND OFFICERS
----------------------
The Board of Directors and Officers of the Surviving Corporation shall be the
Directors and Officers holding such offices of the Surviving Corporation at the
Effective Time of the Merger. Such
3
individuals shall hold office until their successors shall have been elected or
appointed and qualified in accordance with the Bylaws of the Surviving
Corporation.
ARTICLE VIII
------------
EXPENSES OF MERGER
------------------
The Surviving Corporation shall pay all expenses of implementing this Agreement
of Merger and accomplishing the Merger provided for herein.
ARTICLE IX
----------
EFFECTIVE TIME
--------------
This Plan and Agreement of Merger of each of the Constituent Corporations herein
provided for shall become effective at 12:01 a.m. on June 30, 1999, which time
and date shall be the "Effective Time of the Merger.
ARTICLE X
---------
AMENDMENTS
----------
The Constituent Corporations hereby reserve the right to amend, alter, change or
repeal any provisions contained in this Agreement prior to the Effective Time of
the Merger, in the matter now or hereafter prescribed by its Certificate of
Incorporation, statute or otherwise authorized by law; and all rights and powers
conferred herein on stockholders, directors or officers of any of the
Constituent Corporations or of any other person, whomsoever, are subject to this
reserve power.
ARTICLE XI
----------
FURTHER ASSURANCES
------------------
If at any time the Surviving Corporation shall determine or be advised that any
further assignment or assurance in law is necessary or desirable to vest in the
Surviving Corporation the title to any property or rights of the Constituent
Corporations, the proper officers and directors of the Constituent Corporations
shall execute and deliver or cause to be executed and delivered all such proper
assignments, conveyances and assurances in law and do all things necessary or
proper to vest and perfect such property or rights in the Surviving Corporation,
and otherwise to carry out the purposes of this Plan and Agreement of Merger.
4
IN WITNESS WHEREOF, the Surviving Corporation and the Merged Corporations
have each caused this Plan and Agreement of Merger to be signed by its
president, sealed and attested by the signature of its secretary, as of the day
and year first above written.
Ohio Valley Dialysis Center, Inc.
By: /S/ Craig W. Moore
------------------------------
Craig W. Moore, President
ATTEST:
Ohio Valley Dialysis Center, Inc.
By: /S/ Paul Balter
--------------------------------
Paul Balter, M.D., Secretary
Northwest Indiana Dialysis, Inc.
By: /S/ Craig W. Moore
------------------------------
Craig W. Moore, President
ATTEST:
Northwest Indiana Dialysis, Inc.
By: /S/ Paul Balter
--------------------------------
Paul Balter, M.D., Secretary
Lake Avenue Dialysis Center, Inc.
By: /S/ Craig W. Moore
------------------------------
Craig W. Moore, President
ATTEST:
Lake Avenue Dialysis Center, Inc.
By: /s/ Paul Balter
----------------------------
Paul Balter, M.D., Secretary