1
EXHIBIT 10.9
AGREEMENT AND PLAN OF SHARE EXCHANGE
BETWEEN
HEALTHTRONICS, INC.
AND
HLE CORP., METRO I STONE MANAGEMENT, L.P.,
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D.,
and ▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
This Agreement and Plan of Share Exchange made and entered into this
9th day of September 1998, (hereinafter referred to as the "Agreement") by and
between HEALTHTRONICS, INC., a Georgia corporation, HLE CORP., a Texas
corporation (said corporations being hereinafter sometimes referred to as the
"Constituent Corporations") and ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. and ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL,
M.D., and ▇▇▇▇ ▇. ▇▇▇▇▇, M.D. the sole shareholders of HLE CORP. (Collectively,
"the Shareholders," and individually, "a Shareholder"), and METRO I STONE
MANAGEMENT, L.P., a Texas limited partnership:
WITNESSETH
WHEREAS, HEALTHTRONICS, INC. is a corporation duly organized and
validly existing under the laws of the State of Georgia; and
WHEREAS, HLE CORP. is a corporation duly organized and validly existing
under the laws of the State of Texas; and
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. and ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D. and ▇▇▇▇
▇. ▇▇▇▇▇, M.D. are the sole stockholders of HLE. CORP.; and
WHEREAS, the Boards of Directors of each of said corporations deem it
advisable and for the benefit of each of said corporations and their respective
shareholders that HEALTHTRONICS, INC. acquire all of the issued and outstanding
capital stock of HLE CORP.; and
WHEREAS, the Shareholders of HLE CORP. desire to exchange their shares
of HLE
2
CORP. common stock for shares of HEALTHTRONICS, INC. common stock; and
WHEREAS, the parties hereto intend that the transactions contemplated
by this Agreement qualify as a reorganization within the meaning of Section
368(a)(1)(B) of the Internal Revenue Code of 1968, as amended (the "Code"); and
WHEREAS, HLE CORP. owns a thirty percent (30%) limited partnership
interest in METRO I STONE MANAGEMENT, L.P., a Texas limited partnership
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements, promises, and covenants hereinafter contained, it is hereby
agreed by and between the parties hereto, subject to the conditions hereinafter
set forth, that HEALTHTRONICS, INC. (hereinafter sometimes referred to as the
"Acquiring Corporation") shall acquire all of the issued and outstanding capital
stock of HLE CORP. The terms and conditions of the share exchange hereby agreed
upon and the mode of carrying the same into effect and the manner of exchanging
the shares of HLE CORP. for securities of the Acquiring Corporation are and
shall be as follows:
1.
The acts and things required to be done by the Georgia Business
Corporation Code in order to make this Agreement effective, in the manner
provided for in the Georgia Business Corporation Code, shall be attended to and
done by the proper officers of the Constituent Corporations as soon as
practicable.
2.
(a) Upon the effective date of the share exchange (the "Effective
Date"):
(i) Each share of the capital stock of HEALTHTRONICS INC. issued
and outstanding immediately prior to the Effective Date shall continue unchanged
and shall continue to
Page 2
3
evidence the same number of shares of capital stock of the Acquiring
Corporation.
(ii) Each share of the capital stock of HLE CORP. shall be exchanged
for 30 (thirty) shares of the capital stock of HEALTHTRONICS, INC. The shares
shall be exchanged for HEALTHTRONICS, INC. stock as follows. All shares of
HEALTHTRONICS, INC. shall be voting shares.
▇▇▇▇▇ ▇▇▇▇▇, M.D. 3,333.33 HLE CORP. Shares exchanged for 100,000 HEALTHTRONICS INC. Shares
▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D. 3,333.33 HLE CORP. Shares exchanged for 100,000 HEALTHTRONICS INC. Shares
▇▇▇▇ ▇▇▇▇▇, M.D. 3,333.34 HLE CORP. Shares exchanged for 100,000 HEALTHTRONICS INC. Shares
Each stock certificate shall bear the following restriction:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("1933 ACT"), AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, NOR WILL ANY
ASSIGNEE OR ENDORSEE HEREOF BE RECOGNIZED AS AN OWNER HEREOF BY THE COMPANY FOR
ANY PURPOSE, UNLESS A REGISTRATION STATEMENT UNDER THE 1933 ACT WITH RESPECT TO
SUCH SECURITIES SHALL THEN BE IN EFFECT OR UNLESS THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION WITH RESPECT TO ANY PROPOSED TRANSFER OR DISPOSITION
OF SUCH SECURITIES SHALL BE ESTABLISHED TO THE SATISFACTION OF COUNSEL FOR THE
COMPANY. IN ADDITION, THESE SECURITIES HAVE BEEN ISSUED IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION PURSUANT TO APPLICABLE STATE SECURITIES LAW AND
THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER APPLICABLE STATE LAW OR UNLESS IT IS ESTABLISHED TO
THE SATISFACTION OF COUNSEL FOR THE COMPANY THAT SUCH SALE OR TRANSFER IS EXEMPT
UNDER APPLICABLE STATE LAW OR IN A TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE
WITH APPLICABLE STATE LAW".
(b) From and after the Effective Date, each holder of any of the shares
to be exchanged as above provided shall be entitled, upon presentation and
surrender to the Acquiring Corporation of the certificates representing such
shares, to receive in exchange therefor certificates representing the number of
whole shares of the stock of the Acquiring Corporation into which such shares
shall
Page 3
4
have been converted. The surrendered shares shall be canceled.
3.
From the date of this Agreement until the Effective Date or until the
abandonment of the share exchange pursuant to the provisions hereof.
(a) Unless otherwise provided herein, HLE CORP., METRO I STONE
MANAGEMENT, L.P. and HEALTHTRONICS, INC. shall continue to conduct their
respective businesses in the ordinary course, and neither HLE CORP., METRO I
STONE MANAGEMENT, L.P. nor HEALTHTRONICS, INC. shall, without the prior written
consent of the other, engage in any transaction or incur any obligation except
in the ordinary course of business or as otherwise authorized by this Agreement.
Without limiting the foregoing, neither HLE CORP., METRO I STONE MANAGEMENT,
L.P. nor HEALTHTRONICS, INC. shall during the foregoing period, without the
prior consent of the other:
(i) amend its Articles of Incorporation, except as may be
necessary to carry out this Agreement or as required by law;
(ii) borrow any money, other than short term borrowing in the
ordinary course of business;
(iii) issue, sell, encumber, or otherwise dispose of any shares of
its capital stock, however, HEALTHTRONICS, INC. shall not be
prohibited from filing a registration for a public offering of
its securities;
(iv) declare, authorize, or pay any dividend on, make any
distribution in respect of, redeem or acquire for value any
shares of its capital stock, directly or indirectly;
Page 4
5
(v) Sell, lease, or otherwise dispose of any part of its property
or assets, except in the ordinary course of business; enter
into any new plan or agreements for the benefit of officers or
employees or the benefits under any existing such plan;
(vi) Sell, lease or otherwise dispose of any of its ownership or
interest in METRO I STONE MANAGEMENT, L.P.
(vii) Make any purchase of real estate, personal property,
merchandise, or securities except in the ordinary course of
business.
(b) HLE CORP., METRO I STONE MANAGEMENT, L.P. and HEALTHTRONICS, INC.
shall each make available for examination by the other as requested, in addition
to its financial statements, any inventory and other detailed records in support
of such statements; records of contracts, commitments, leases, licensing
agreements, deeds, title insurance policies, patents, trademarks, and other
evidence of interest or ownership in property; details and status of the various
funds, plans, profit sharing and deferred compensation agreements, if any; stock
option plans and other provisions for the benefit of its officers and employees;
income tax return, audit material and related data; information concerning
claims of litigation threatened or pending, and all other information relevant
to their respective businesses and to the merger herein contemplated.
4.
HLE CORP. represents and warrants to HEALTHTRONICS, INC. as follows:
(a) HLE CORP. is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Texas, has full corporate power to
carry on its business as it is now being conducted and to own and operate the
properties and assets now owned or operated by it and
Page 5
6
is duly qualified to do business and is in good standing in each jurisdiction
where the conduct of its business or the ownership of its property requires such
classification.
(b) All of the outstanding shares of HLE CORP. are validly issued,
fully paid and nonassessable.
(c) HLE CORP. has no outstanding options or warrants.
(d) The balance sheet of HLE CORP. as of September 30, 1998, and copies
of HLE CORP.'s financial statements for 1998 have been delivered to
HEALTHTRONICS, INC., and present fairly the financial position and the results
of the operations of HLE CORP. HLE CORP. has no liabilities or obligations,
either accrued, absolute, contingent, or otherwise, which are not set forth on
the balance sheets.
(e) HLE CORP. has authorized 10,000 shares of capital stock and has
10,000 shares outstanding. Such shares are held as follows:
▇▇▇▇▇ ▇▇▇▇▇, M.D. 3,333.33 Shares
▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D. 3,333.33 Shares
▇▇▇▇ ▇▇▇▇▇, M.D. 3,333.34 Shares
(f) All federal, state, and other tax returns and reports that are
required to be filed prior to the Effective Date have been or will be filed
prior to the Effective Date, and all taxes, assessments, fees, and other
governmental charges shown to be due on such tax returns or reports have been or
will be paid prior to the Effective Date.
(g) Since September 30, 1998, there has not been:
(i) any material adverse change in the financial
condition or in the operation,
Page 6
7
business, or property of HLE CORP. from that shown on
its September 30, 1998, balance sheet;
(ii) any damage, destruction, or loss, whether covered by
insurance or not, materially affecting the
operations, business or property of HLE CORP.;
(iii) any declaration, setting aside, or payment of any
dividend, or any distribution in respect of the
capital stock of HLE CORP., or any redemption of such
stock; or
(iv) any labor trouble other than routine grievance
matters, none of which is material.
(h) HLE CORP. has good title to all of its property and assets,
real and personal, reflected in its September 30, 1998, balance sheet (except
properties and assets sold or otherwise disposed of since such date in the
ordinary course of business) free and clear of all mortgages, liens, pledges,
charges, or encumbrances of any nature whatsoever, except as reflected in said
balance sheet and except liens for current taxes not yet due and payable. All
leases pursuant to which HLE CORP. leases any substantial amount of real or
personal property, are in good standing, valid, and effective in accordance with
their respective terms, and there is not under any such leases any existing
default or event of default or event which, with notice or lapse of time or
both, would constitute a default and in respect of which HLE CORP. has not taken
adequate steps to prevent a default from occurring The equipment of HLE CORP.
that is necessary to the operation of its business is in good condition and
repair, subject to reasonable wear and tear.
(i) There is no suit, action, litigation, administrative
arbitration, or other proceeding, or any change in the zoning or building
ordinances affecting the real property or leasehold interest of
Page 7
8
HLE CORP. pending or (to the knowledge of the management of HLE CORP.)
threatened which might materially affect the overall financial condition,
business, or property of HLE CORP. HLE CORP. has complied with all laws,
ordinances, requirements, regulations, or orders applicable to its business.
(j) The execution of this Agreement has been duly authorized by
the Board of Directors of HLE CORP. and no other corporate action is necessary
for the execution hereof. Neither the execution and delivery of this Agreement,
nor the consummation of the transaction provided for herein, will violate any
material agreement to which HLE CORP. is a party or by which it is bound or any
provisions of the Articles of Incorporation or Bylaws of HLE CORP. or any law,
order or decree.
(k) Except to the extent heretofore disclosed to HEALTHTRONICS,
INC. in writing, HLE CORP. is not a party to any agreement or instrument or
subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree, rule, or regulation which materially and adversely
affects, or so far as HLE CORP. can now reasonably foresee, may in the future
materially and adversely affect the business operations, prospects, properties,
assets or condition, financial or otherwise, of HLE CORP.
(1) HLE CORP. owns a thirty percent (30%) limited partnership
interest in METRO I STONE MANAGEMENT L.P.
5.
METRO I STONE MANAGEMENT L.P. represents and warrants as follows:
(a) METRO I STONE MANAGEMENT L.P. is a Limited Partnership duly
organized, validly existing, and in good standing under the laws of the State of
Texas, has full power to carry
Page 8
9
on its business as it is now being conducted and to own and operate the
properties and assets owned or operated by it and is duly qualified to do
business and is in good standing in each jurisdiction where the conduct of its
business or the ownership of its property requires such classification.
(b) The balance sheet of METRO I STONE MANAGEMENT L.P. as of
December 31, 1997, and statement of income (loss) and retained earnings for the
year then ended, and copies of financial statements for 1997 have been delivered
to HEALTHTRONICS, INC., and present fairly the financial position and the
results of the operations of METRO I STONE MANAGEMENT L.P. for the year ended
December 31, 1997. METRO I STONE MANAGEMENT, L.P. has no liabilities or
obligations, either accrued, absolute, contingent, or otherwise, which are not
set forth in the referenced financial statements.
(c) The partners of METRO I STONE MANAGEMENT, L.P. are as follows:
See Exhibit "A" attached hereto and incorporated herein
by reference.
(d) All federal, state, and other tax returns and reports that are
required to be filed prior to the Effective Date have been or will be filed
prior to the Effective Date, and all taxes, assessments, fees, and other
governmental charges shown to be due on such tax returns or reports have been or
will be paid prior to the Effective Date.
(e) Since December 31, 1997, there has not been
(i) any material adverse change in the financial
condition or in the operation, business, or property
of METRO I STONE MANAGEMENT, L.P. from that shown on
its December 31, 1997, balance sheet;
(ii) any damage, destruction, or loss, whether covered by
insurance or not, materially affecting the
operations, business or property of METRO I
Page 9
10
STONE MANAGEMENT, L.P.; or
(iii) any declaration, setting aside, or payment of any
distribution by METRO I STONE MANAGEMENT, L.P. to its
partners or any repurchase of any partner's
partnership interest; or
(iv) any labor trouble other than routine grievance
matters, none of which is material.
(f) METRO I STONE MANAGEMENT, L.P. has good title to all of its
property and assets, real and personal, reflected in its December 31, 1997,
balance sheet (except properties and assets sold or otherwise disposed of since
such date in the ordinary course of business) free and clear of all mortgages,
liens, pledges, charges, or encumbrances of any nature whatsoever, except as
reflected in said balance sheet and except liens for current taxes not yet due
and payable. All leases pursuant to which METRO I STONE MANAGEMENT, L.P. leases
any substantial amount of real or personal property, are in good standing,
valid, and effective in accordance with their respective terms, and there is not
under any such leases any existing default or event of default or event which,
with notice or lapse of time or both, would constitute a default and in respect
of which METRO I STONE MANAGEMENT, L.P. has not taken adequate steps to prevent
a default from occurring. The equipment of METRO I STONE MANAGEMENT, L.P. that
is necessary to the operation of its business is in good condition and repair,
subject only to reasonable wear and tear.
(g) There is no suit, action, litigation, administrative
arbitration, or other proceeding, or any change in the zoning or building
ordinances affecting the real property or leasehold interest of METRO I STONE
MANAGEMENT, L.P. pending or (to the knowledge of the management of METRO I STONE
MANAGEMENT, L.P.) threatened which might materially affect the overall
Page 10
11
financial condition, business, or property of METRO I STONE MANAGEMENT, L.P.
METRO I STONE MANAGEMENT, L.P. has complied with all laws, ordinances,
requirements, regulations, or orders applicable to its business.
(h) Except to the extent heretofore disclosed to HEALTHTRONICS,
INC. in writing, METRO I STONE MANAGEMENT, L.P. is not a party to any agreement
or instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree, rule, or regulation which materially
and adversely affects, or so far as METRO I STONE MANAGEMENT, L.P. can now
reasonably foresee, may in the future materially and adversely affect the
business operations, prospects, properties, assets or condition, financial or
otherwise, of METRO I STONE MANAGEMENT, L.P.
(i) HLE CORP. owns a thirty percent (30%) limited partnership
interest in METRO I STONE MANAGEMENT, L.P.
6.
Anything herein to the contrary notwithstanding, this Agreement may be
terminated and abandoned at any time prior to October 31, 1998:
(a) By mutual consent of the Board of Directors of both
Constituent Corporations, expressed in a corporate resolution from each
corporation;
(b) By the Board of Directors of HEALTHTRONICS, INC. if HLE CORP.
shall fail to deliver, on or before October 31, 1998, an opinion of its counsel
with respect to HLE CORP. stating in substance:
(i) That the corporation to which such opinion related is
duly organized and in good standing under the
applicable laws of the State of Texas and is duly
Page 11
12
authorized to engage in the business in which it is
now engaged.
(ii) That the issued and outstanding shares of such
corporation are duly authorized, validly issued,
fully paid and nonassessable.
(iii) That this Agreement has been duly authorized,
executed, and delivered by such corporation, and that
such corporation has full power and authority so to
do and to comply with all of the terms, covenants and
provisions hereof.
(iv) That the consummation of the share exchange by the
Constituent Corporations on the terms and conditions
herein stated will not violate any applicable
provisions of state or federal law or regulation or
any applicable provision of any indenture, or will
result in a breach of or constitute a default under
any mortgage, deed of trust, or other agreement or
instrument.
7.
All notices, waivers, consents, or requests required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on the
date of delivery or when deposited in the United States mail, postage prepaid,
in an envelope properly addressed as follows:
(a) In the case of HEALTHTRONICS, INC. to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) In the case of HLE CORP. to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Page 12
13
8.
Each of the Constituent Corporations represents to the other that it
has not incurred and will not incur any liability for brokerage fees or agents'
commissions in connection with the Agreement and the share exchange contemplated
hereby.
9.
HLE CORP. and its shareholders listed above, acknowledge that ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and the law firm of ▇▇▇▇▇▇▇, Camp & ▇▇▇▇▇▇ do not represent them and
have not rendered legal or tax advice regarding this transaction and further
state that they rely solely upon advice rendered by independent attorneys and/or
accounts that they have consulted.
HLE CORP. and its shareholders further acknowledge that no officer or
employee of HEALTHTRONICS, INC. has rendered tax advice regarding this
transaction and further state that they rely solely upon advice rendered by
independent attorneys and/or accountants that they have consulted.
10.
(a) From and after the date of this Agreement and continuing after
the Effective Date, none of HEALTHTRONICS, INC., HLE CORP., METRO I STONE
MANAGEMENT, L.P., or the Shareholders shall take, or cause or permit any of
their affiliates to take, any action that would preclude qualification of the
transactions contemplated by this Agreement as a reorganization within the
meaning of Section 368(a)(1)(B) of the Code.
(b) Each of HEALTHTRONICS, INC. and HLE CORP. shall comply with
the reporting requirements of Treasury Regulations Section 1.368-3, and shall
not take any position on any tax return inconsistent with qualification of the
transactions contemplated by this Agreement as a
Page 13
14
reorganization within the meaning of Section 368(a)(1)(B) of the Code.
IN WITNESS WHEREOF, HEALTHTRONICS, INC. and HLE CORP. and its
undersigned shareholders and METRO I STONE MANAGEMENT, L.P. have each caused
this Agreement and Plan of Share Exchange to be executed on their respective
behalves and their respective corporate seals affixed and the foregoing
attested, all by their respective duly authorized officers on the 9th day of
September, 1998.
ATTEST:
HEALTHTRONICS, INC.
BY: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇ (President)
ATTEST:
HLE CORP.
BY: /s/ ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D.
-------------------------------------
(President)
ATTEST:
SHAREHOLDERS OF HLE CORP.
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇, M.D.
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, M.D.
Page 14
15
ATTEST: /s/ ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D.
-------------------------------------------
▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D.
ATTEST: /s/ ▇▇▇▇ ▇▇▇▇▇, M.D.
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇, M.D.
ATTEST:
METRO I STONE MANAGEMENT, L.P.
BY: U.S. Lithotripsy (Sole General Partner)
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ (President)
Page 15
16
EXHIBIT "A"
TO THE
AGREEMENT AND PLAN OF SHARE EXCHANGE
BETWEEN HEALTHTRONICS, INC. AND
HLE CORP., METRO I STONE MANAGEMENT, L.P.,
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL, M.D.,
AND ▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
GENERAL AND LIMITED PARTNERS OF METRO I STONE MANAGEMENT, L.P. (PRIOR TO
CONSUMMATION OF THE AGREEMENT & PLAN OF SHARE EXCHANGE)
GENERAL PARTNER
U.S. Lithotripsy, L.P. 1%
LIMITED PARTNERS
U.S. Lithotripsy, L.P. 9%
▇. ▇▇▇▇▇▇▇▇▇ Hezmall, M.D. 20%
▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. 20%
▇▇▇▇ ▇. ▇▇▇▇▇, M.D. 20%
▇▇▇▇ ▇. House, M.D. 20%
V. ▇▇▇▇ ▇▇▇▇▇, M.D. 4%
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. 3%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D. 2%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D. 1%
Page 16
17
ARTICLES OF INCORPORATION OF
HLE CORP.
The undersigned, a natural person of the age of eighteen (18) years or
more, acting as incorporator of a corporation under the Texas Business
Corporation Act, hereby adopts the following Articles of Incorporation:
ARTICLE ONE
NAME
The name of the Corporation is HLE CORP. (the "Corporation").
ARTICLE TWO
DURATION
The period of the Corporation's duration is perpetual.
ARTICLE THREE
PURPOSE
The purpose for which the Corporation is organized is to engage in any
activity in which corporations may lawfully engage under the Texas Business
Corporation Act.
ARTICLE FOUR
AUTHORIZED SHARES
The aggregate number of shares which the Corporation shall have
authority to issue is ten thousand (10,000) common shares with $.01 par value.
ARTICLE FIVE
COMMENCEMENT OF BUSINESS
The Corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000), consisting of money, labor done, or property actually received.
18
ARTICLE SIX
PREEMPTIVE RIGHTS AND CUMULATIVE VOTING
The shareholders shall have preemptive rights to acquire new or
additional shares issued by the Corporation. Cumulative voting shall not be
permitted.
ARTICLE SEVEN
AGENT FOR PROCESS
The street address of the Corporation's initial registered office is
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ and the name of its
initial registered agent at such address is ▇. ▇▇▇▇▇▇▇▇▇ Hezmall, M.D.
ARTICLE EIGHT
DIRECTORS
The number of directors constituting the Corporation's initial Board
of Directors is one (1), and the name and address of the person to serve as the
sole Director until the first meeting of the shareholders or until his successor
is elected and qualified, is as follows:
NAME ADDRESS
---- -------
▇. ▇▇▇▇▇▇▇▇▇ Hezmall, M.D. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ARTICLE NINE
ACTION OF SHAREHOLDERS WITHOUT A MEETING
Any action required by the Texas Business Corporation Act to be taken
at any annual or special meeting of shareholders, or any action which may be
taken at any annual or special meeting of shareholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall have been signed by the holder
or holders of shares having not less than the minimum number of votes that would
be necessary to take such action at a meeting at which the holders of all shares
entitled to vote on the action were present and voted.
2
19
ARTICLE TEN
RIGHT TO AMEND
The Corporation reserves the right to amend and repeal any provision
contained in the Articles of Incorporation in the manner prescribed by the laws
of the State of Texas. All rights herein conferred are granted subject to this
reservation.
ARTICLE ELEVEN
EXEMPTION OF DIRECTORS FROM LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for an act or omission in
the director's capacity as a director, except to the extent that any applicable
law may prevent such director from being relieved of such personal liability.
Any repeal or modification of this Article shall be prospective only and shall
not adversely affect any limitation of the personal liability of a director of
the Corporation existing at the time of such repeal or modification.
ARTICLE TWELVE
INCORPORATOR
The name and address of the incorporator of the Corporation is:
NAME ADDRESS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the undersigned being the incorporator for the
purpose of forming a Corporation under the laws of the State of Texas has
executed these Articles of Incorporation on this 2nd day of September, 1998.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
3
20
HLE CORP.
RESOLUTION AUTHORIZING SHARE EXCHANGE,
AND SHAREHOLDERS' ADOPTION OF RESOLUTION
WHEREAS, ▇. ▇▇▇▇▇▇▇▇▇ Hezmall, M.D., ▇▇▇▇ ▇. ▇▇▇▇▇, M.D., and ▇▇▇▇▇ ▇.
▇▇▇▇▇, M.D. are the sole stockholders of HLE Corp. ("the Stockholders"); and
WHEREAS, the Stockholders of HLE Corp., a Texas corporation, ("HLE")
have entered into negotiations for the exchange of all of their shares of HLE
stock, which shares constitute all of the issued and outstanding capital stock
of HLE, for an agreed number of voting shares of Healthtronics, Inc., a Georgia
corporation; and
WHEREAS, said negotiations have resulted in terms mutually agreeable to
all parties, including all stockholders of HLE; and
WHEREAS, said terms have been memorialized in a document entitled
"Agreement and Plan of Share Exchange", a copy of which is attached hereto; and
WHEREAS, the directors of HLE have had sufficient opportunity to review
said Agreement and Plan of Share Exchange, and have had the benefit of the
advice of counsel as to the rights, duties, and obligations arising under the
provisions of the Agreement and Plan of Share Exchange;
NOW, THEREFORE, be it resolved that the undersigned, being the
Directors of HLE Corp., convened at a meeting duly called and noticed pursuant
to the provisions of the corporate bylaws, hereby officially approve the terms
of the exchange as set forth in the Agreement and Plan of Share Exchange, and
resolve to take whatever steps necessary, under the law, to complete the
exchange contemplated by the provisions of the Agreement and Plan of Share
Exchange, and hereby authorize the exchange of all issued and outstanding shares
of HLE capital stock for the agreed quantities of voting shares of
HealthTronics, Inc. stock, in the percentages contemplated, and under the terms
and provisions set forth in the Agreement and Plan of Share Exchange.
WITNESS WHEREOF, the undersigned have set their hands this the 4th day
of September, 1998.
/s/ ▇. ▇▇▇▇▇▇▇▇▇ HEZMALL
----------------------------------
▇. ▇▇▇▇▇▇▇▇▇ Hezmall, Director
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Director
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
21
APPROVED and ADOPTED
/s/ ▇. ▇▇▇▇▇▇▇▇▇ Hezmall
----------------------------------
▇. ▇▇▇▇▇▇▇▇▇ Hezmall, Shareholder
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Shareholder
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Shareholder
22
(THE STATE OF TEXAS LOGO)
THE STATE OF TEXAS
SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
HLE CORP.
CHARTER NUMBER 01503871
THE UNDERSIGNED, AS SECRETARY OF STATE OF TEXAS, HEREBY CERTIFIES THAT
THE ATTACHED ARTICLES OF INCORPORATION FOR THE ABOVE NAMED CORPORATION HAVE BEEN
RECEIVED IN THIS OFFICE AND ARE FOUND TO CONFORM TO LAW.
ACCORDINGLY, THE UNDERSIGNED, AS SECRETARY OF STATE, AND BY VIRTUE OF
THE AUTHORITY VESTED IN THE SECRETARY BY LAW, HEREBY ISSUES THIS CERTIFICATE OF
INCORPORATION.
ISSUANCE OF THIS CERTIFICATE OF INCORPORATION DOES NOT AUTHORIZE THE
USE OF A CORPORATE NAME IN THIS STATE IN VIOLATION OF THE RIGHTS OF ANOTHER
UNDER THE FEDERAL TRADEMARK ACT OF 1946, THE TEXAS TRADEMARK LAW, THE ASSUMED
BUSINESS OR PROFESSIONAL NAME ACT OR THE COMMON LAW.
DATED SEP. 4, 1998
EFFECTIVE SEP. 4, 1998
[SEAL]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary of State