VETERINARY PET INSURANCE COMPANY VETERINARY PET SERVICES, INC. AMENDED AND RESTATED PLAN OF MERGER
EXHIBIT 99.3
VETERINARY PET INSURANCE COMPANY
VETERINARY PET SERVICES, INC.
AMENDED AND RESTATED PLAN OF MERGER
THIS AMENDED AND RESTATED PLAN OF MERGER is entered into as of July 6, 2005 by and between Veterinary Pet Insurance Company, a
California insurance corporation (“VPI”) and Veterinary Pet Services, Inc., a California corporation (“VPSI”).
VPI and VPSI are
hereinafter sometimes collectively referred to as the “Constituent Corporations.”
WHEREAS VPI was incorporated on September 17, 1981. Its current authorized capital stock consists of 1,000,000 shares of Common
Stock, with a par value of $250.00 (the “VPI Common Stock”), of which 4,000 shares are issued and outstanding.
WHEREAS VPSI was incorporated on October 2, 1980. Its authorized capital stock consists of 50,000,000 shares of Common Stock, no par
value (the “VPSI Common Stock”), of which 5,641,395 shares are issued and outstanding as of December 31, 2004.
WHEREAS the respective Boards of Directors of VPI and VPSI deem it advisable and to the advantage of each of the Constituent
Corporations that VPSI merge with and into VPI with VPI as the survivor upon the terms and subject to the conditions set forth in
this Amended and Restated Plan of Merger.
WHEREAS the Boards of Directors of each of the Constituent Corporations have approved this Amended and Restated Plan of Merger.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization set forth in this Amended and Restated Plan of Merger and do
hereby agree that VPSI shall merge with and into VPI on the following terms, conditions and other provisions:
- Merger and Effective Time. At the Effective Time (as defined below),
VPSI shall be merged with and into VPI (the “Merger”), and VPI
shall be the surviving corporation of the Merger (the “Surviving Corporation”) (see Exhibit A attached hereto). The Merger shall
become effective at 11:59 p.m. on the close of business on the date when all required documents are filed with the Secretary of State
of the State of California (the “Effective Time”); provided, however, that the Effective Time shall not occur and the Merger shall
not occur unless and until all regulatory approvals have been obtained by the Constituent Corporations.
- Effect of Merger. At the Effective Time, the separate corporate
existence of VPSI shall cease; the corporate identity, existence,
powers, rights and immunities of VPI as the Surviving Corporation shall continue unimpaired by the Merger; and VPI shall
succeed to and shall possess all the assets, properties, rights, privileges, powers, franchises, immunities and purposes,
and be subject to all the debts, liabilities, obligations, restrictions and duties of VPSI, all without further act or deed,
including, without limitation, full and complete ownership of all the stock of V.P.I. Services, Inc.
- Governing Documents. At the Effective Time, the Articles of Incorporation,
as amended, and Bylaws of VPI in effect immediately prior
to the Effective Time shall remain in effect and unchanged by virtue of the Merger.
- Directors and Officers. At the Effective Time, the directors of VPI shall remain the directors of VPI, and the officers of VPI shall
remain the officers (holding the same offices) of VPI, and shall continue to serve in accordance with the Articles of Incorporation
and Bylaws of VPI. For the sake of clarity, the following individuals are the directors of the Company, and serve on the following
Committees of the Board of Directors, and hold the offices of the Company set forth opposite their respective names:
| Directors: Xxxxxxx X. Xxxxxx, R. Xxx Xxxxxxxxxx, Xxxx X. Xxxxxxxxx, and Xxxxx X. Lancer |
| Audit Committee Members: R. Xxx Xxxxxxxxxx, Xxxx X. Xxxxxxxxx, and Xxxxx X. Lancer |
| Investment Committee Members: Xxxxxxx X. Xxxxxx, R. Xxx Xxxxxxxxxx, and Xxxxx X. Lancer |
| Officers: |
|
Xxxxx
X. Xxxxxx Acting President and
Chief Executive Officer Xxxxxxx X. Xxxxxx Principal Accounting Officer Xxxxxx X. Xxxxxx Secretary Xxxxxxx X. Xxxxx Vice President – Sales, Marketing and Business Development |
- Conversion of Shares of VPSI. At the Effective Time, by virtue of the Merger
and without any further action on the part of the
Constituent Corporations or their shareholders, the shares of VPSI Common Stock issued and outstanding immediately prior
thereto shall be converted into fully paid and nonassessable shares of VPI Common Stock in accordance with the Conversion
Chart attached hereto as Exhibit B. Shares of VPI Common Stock issued in the Merger upon conversion of shares of VPSI
Common Stock shall, by virtue of the Merger, continue to be subject to the same contractual restrictions on transfer, rights
of repurchase, vesting and other provisions, if any, to the same extent as were applicable immediately prior to the
Effective Time to the shares of VPSI Common Stock so converted. VPI intends to request that the DOI approve the issuance of
6,641,014 common shares to accommodate the exchange of VPSI shares for VPI shares. Accordingly, because more common shares
of VPI shall be issued, the par value of each share of VPI common stock will be reduced proportionally as shown on the
attached Conversion Chart. However, the aggregate par value of the VPI common shares shall remain at $1,000,000.
Continuous employment with VPSI will be credited to holders of VPI Common Stock for purposes of determining the vesting of
shares of VPI Common Stock subject to exercise under a converted VPSI option at the Effective Time.
- Cancellation of Shares of VPSI. At the Effective Time, by virtue
of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, all of the previously issued and outstanding shares of VPSI Common Stock
that were issued and outstanding immediately prior to the Effective Time shall be automatically canceled and returned to the
status of authorized but unissued shares.
- Stock Certificates. At and after the Effective Time, all of the
outstanding certificates that, prior to that date,
represented shares of VPSI Common Stock shall be deemed for all purposes to evidence ownership of and to represent the
number of shares of VPI Common Stock into which such shares of VPSI Common Stock are converted as provided herein. The
registered owner on the books and records of VPSI of any such outstanding stock certificate for VPSI Common Stock shall,
until such certificate is surrendered for transfer or otherwise accounted for to VPI or its transfer agent, be entitled to
exercise any voting and other rights with respect to, and to receive any dividend and other distributions upon, the shares
of VPI Common Stock evidenced by such outstanding certificate as provided above.
- Assumption of Options and Warrants. At the Effective Time, all
outstanding and unexercised portions of all options to
purchase VPSI Common Stock under any existing VPSI stock purchase plans and all other outstanding options to purchase VPSI
Common Stock (the “Existing Plans”), shall be assumed by VPI and become options to purchase shares of VPI
Common Stock,
pursuant to in accordance with the Conversion Chart attached hereto as Exhibit B, and shall have the same term,
exercisability, vesting schedule, status as an "incentive stock option" under Section 422 of the Internal Revenue Code of
1986, as amended (the “Code”), if applicable, and all other material terms and conditions (including but not limited to the
terms and conditions applicable to such options by virtue of the Existing Plans). Continuous employment with VPSI will be
credited to an optionee for purposes of determining the vesting of the number of shares of VPI Common Stock subject to
exercise under an assumed VPSI option at the Effective Time. Additionally, at the Effective Time, all outstanding and
unexercised portions of all warrants to purchase or acquire VPSI Common Stock shall be assumed by VPI and become warrants to
purchase or acquire shares of VPI Common Stock, pursuant to and in accordance with the Conversion Chart attached hereto as
Exhibit B.
- Fractional Shares. Fractional shares of VPI Common Stock will not be
issued in connection with the Merger.
- Employee Benefit Plans. At the Effective Time, the obligations of VPSI
under or with respect to every plan, trust, program
and benefit then in effect or administered by VPSI for the benefit of the directors, officers and employees of VPSI shall
become the lawful obligations of VPI and shall be implemented and administered in the same manner and without interruption
until the same are amended or otherwise lawfully altered or terminated. Effective at the Effective Time, VPI hereby
expressly adopts and assumes all obligations of VPSI under such employee benefit plans.
- Further Assurances. From time to time, as and when required by the Surviving Corporation or by its successors or assigns, there
shall be executed and delivered on behalf of VPSI such deeds, assignments and other instruments, and there shall be taken or
caused to be taken by it all such further action, as shall be appropriate, advisable or necessary in order to vest, perfect
or confirm, of record or otherwise, in the Surviving Corporation the title to and possession of all property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of VPSI, and otherwise to carry out the purposes of
this Plan of Merger. The officers and directors of the Surviving Corporation are fully authorized in the name of and on
behalf of VPSI, or otherwise, to take any and all such actions and to execute and deliver any and all such deeds and other
instruments as may be necessary or appropriate to accomplish the foregoing.
- Abandonment. At any time before the Effective Time, this Plan of Merger may be terminated and the Merger abandoned by the
Board of Directors of either VPI or VPSI.
- Amendment. At any time before the Effective Time, this Plan of Merger may be amended, modified or supplemented by the
mutual agreement of the Boards of Directors of the Constituent Corporations.
- Tax-Free Reorganization. The Merger is intended
to be a tax-free plan of reorganization within the meaning of Section
368(a)(1)(F) of the Code.
- Governing Law. This Plan of Merger shall be governed by and construed
under the laws of the State of California.
- Counterparts. This Plan of Merger may be executed in two counterparts, each of which shall be deemed to be an original, but
both of which together shall constitute one and the same instrument.
VETERINARY PET SERVICES, INC. | ||
| /s/ XXXXXXX X. XXXXX _______________________________ Xxxxxxx X. Xxxxx, Vice President |
VETERINARY PET INSURANCE COMPANY | ||
| /s/ XXXXX X. XXXXXX _______________________________ Xxxxx X. Xxxxxx, Acting President and Chief Executive Officer |
EXHIBIT A
EXHIBIT B
CONVERSION CHART
PRE MERGER
| VPSI | VPI | ||||
| Authorized Shares | 50,000,000 | 1,000,000 | |||
| Par Value | None | $ 250 | |||
| Issued Shares | 5,641,395 | 4,000 | |||
| Options Outstanding | 929,422 | None | |||
| Warrants Outstanding | 70,197 | None | |||
| Fully-Diluted Common Shares | 6,641,014 | 4,000 | |||
MERGER
| Conversion | |||||||
|---|---|---|---|---|---|---|---|
| VPSI | Factor | VPI | |||||
| Issued Shares | 5,641,395 | 1 for 1 | 5,641,395 | ||||
| Par Value | None | N/A | $ 0.1772611 | ||||
| ($1,000,000 in | |||||||
| the aggregate) | |||||||
| Exercisable Options | 929,422 | 1 for 1 | 929,422 | ||||
| Exercisable Warrants | 70,197 | 1 for 1 | 70,197 | ||||
| Fully-Diluted Common Shares | 6,641, 01 | 4 | 1 for 1 | 6,641, 014 | |||
POST MERGER
| VPI | |||
| Authorized Shares | 10,000,000 | ||
| Par Value | $ 0.1772611 | ||
| ($1,000,000 in the aggregate) | |||
| Issued Shares | 5,641,395 | ||
| Options Outstanding | 929,422 | ||
| Warrants Outstanding | 70,197 | ||
| Fully-Diluted Common Shares | 6,641, 014 |
