1
EXHIBIT 2.01
FORM OF
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is
made as of May __, 1997 by and between O.S.I. Corporation, a California
corporation ("O.S.I. California"), and Ocular Sciences, Inc., a Delaware
corporation ("O.S.I. Delaware"). O.S.I. California and O.S.I. Delaware are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
R E C I T A L S
A. O.S.I. California was incorporated on December 23, 1985.
Its current authorized capital stock consists of: (1) 40,000,000 shares of
Common Stock, no par value ("O.S.I. California Common Stock"), of which
approximately 8,279,915 shares are issued and outstanding; and (2) 4,000,000
shares of Preferred Stock, no par value ("O.S.I. California Preferred Stock"),
of which 118,168 shares are issued and outstanding (consisting of 118,168 shares
of Series A Preferred Stock).
B. O.S.I. Delaware was incorporated on May __, 1997. Its
authorized capital stock consists of: (1) 40,000,000 shares of Common Stock,
with a par value of $0.001 per share ("O.S.I. Delaware Common Stock"), of which
1,000 shares are issued and outstanding; and (2) 4,118,168 shares of Preferred
Stock, $0.001 par value ("O.S.I. Delaware Preferred Stock"), none of which
shares are issued and outstanding.
C. The respective Boards of Directors of O.S.I. California and
O.S.I. Delaware deem it advisable and to the advantage of each of the
Constituent Corporations that O.S.I. California merge with and into O.S.I.
Delaware upon the terms and subject to the conditions set forth in this Merger
Agreement for the purpose of effecting a change of the state of incorporation of
O.S.I. California from California to Delaware.
D. The Boards of Directors of each of the Constituent
Corporations have approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of
reorganization set forth in this Merger Agreement and do hereby agree that
O.S.I. California shall merge with and into O.S.I. Delaware on the following
terms, conditions and other provisions:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as
defined below), O.S.I. California shall be merged with and into O.S.I. Delaware
(the "Merger"), and O.S.I. Delaware shall be the surviving corporation of the
Merger (the "Surviving Corporation"). The Merger shall become effective upon the
close of business on the date when a duly executed copy of this Merger
Agreement, along with all required officers' certificates, is filed with the
Secretary of State of the State of California, or upon the close of business on
the date when a duly executed copy of this Merger Agreement, along with all
required officers' certificates, is filed with the Secretary of State of the
State of Delaware, whichever later occurs (the "Effective Time").
2
2. EFFECT OF MERGER. At the Effective Time, the separate
corporate existence of O.S.I. California shall cease; the corporate identity,
existence, powers, rights and immunities of O.S.I. Delaware as the Surviving
Corporation shall continue unimpaired by the Merger; and O.S.I. Delaware 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 O.S.I. California, all
without further act or deed.
3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate
of Incorporation of O.S.I. Delaware in effect immediately prior to the Effective
Time shall become the Certificate of Incorporation of the Surviving Corporation
and the Bylaws of O.S.I. Delaware in effect immediately prior to the Effective
Time shall become the Bylaws of the Surviving Corporation.
4. DIRECTORS AND OFFICERS. At the Effective Time, the
directors and officers of O.S.I. Delaware shall be and become the directors and
officers (holding the same titles and positions) of the Surviving Corporation
and after the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. CONVERSION OF SHARES OF O.S.I. CALIFORNIA. Subject to the
terms and conditions of this Agreement, at the Effective Time, (i) each share of
O.S.I. California Common Stock outstanding immediately prior thereto shall be
automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of O.S.I. Delaware Common Stock, and (ii) each
share of O.S.I. California Series A Preferred Stock outstanding immediately
prior thereto shall be automatically changed and converted into one fully paid
and nonassessable, issued and outstanding share of O.S.I. Delaware Series A
Preferred Stock.
6. CANCELLATION OF SHARES OF O.S.I. DELAWARE. At the Effective
Time, all of the previously issued and outstanding shares of O.S.I. Delaware
Common Stock that were issued and outstanding immediately prior to the Effective
Time shall be automatically retired and canceled.
7. STOCK CERTIFICATES. At and after the Effective Time, all of
the outstanding certificates that, prior to that date, represented shares of
O.S.I. California Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of O.S.I. Delaware Common
Stock into which such shares of O.S.I. California Common Stock are converted as
provided herein. At and after the Effective Time, all of the outstanding
certificates that, prior to that date, represented shares of a series of O.S.I.
California Preferred Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of the series of O.S.I.
Delaware Preferred Stock into which such shares of O.S.I. California Preferred
Stock are converted as provided herein. The registered owner on the books and
records of O.S.I. California of any such outstanding stock certificate for
O.S.I. California Common Stock or O.S.I. California Preferred Stock shall, until
such certificate shall have been surrendered for transfer or otherwise accounted
for to O.S.I. Delaware 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 O.S.I. Delaware Common
-2-
3
Stock or O.S.I. Delaware Preferred Stock evidenced by such outstanding
certificate as above provided.
8. CONVERSION OF OPTIONS AND WARRANTS. At the Effective Time,
all outstanding and unexercised portions of all options to purchase a share of
O.S.I. California Common Stock under the O.S.I. California 1989 Stock Option
Plan and all outstanding and unexercised portions of all options to purchase a
share of O.S.I. California Common Stock under the O.S.I. California 1992
Officers and Directors Stock Option Plan shall become options to purchase a
share of O.S.I. Delaware Common Stock at the same exercise price per share and
shall, to the extent permitted by law and otherwise reasonably practicable, 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 each of the O.S.I. California 1989 Stock Option Plan and the O.S.I.
California 1992 Officers and Directors Stock Option Plan). Continuous employment
with O.S.I. California will be credited to an optionee for purposes of
determining the vesting of the number of shares of O.S.I. Delaware Common Stock
under a converted O.S.I. California option at the Effective Time. Additionally,
at the Effective Time, O.S.I. Delaware shall adopt and assume each of the O.S.I.
California 1989 Stock Option Plan and the O.S.I. California 1992 Officers and
Directors Stock Option Plan. At the Effective Time, any outstanding and
unexercised portions of all warrants to purchase or acquire O.S.I. California
Common Stock shall become warrants to purchase or acquire, on the same terms and
conditions, the same number of shares of O.S.I. Delaware Common Stock.
9. FRACTIONAL SHARES. No fractional shares of O.S.I. Delaware
Common Stock or Preferred Stock will be issued in connection with the Merger. In
lieu thereof, O.S.I. Delaware shall pay each shareholder of O.S.I. California
who would otherwise be entitled to receive a fractional share of O.S.I. Delaware
Common Stock or Preferred Stock (assuming the aggregation of all shares held by
the same holder of more than one stock certificate representing shares of O.S.I.
California Common Stock or Preferred Stock, as the case may be) a cash amount
equal to the applicable fraction multiplied by the fair market value of a share
of O.S.I. Delaware Common Stock or Preferred Stock, as the case may be, as
determined by the Board of Directors of O.S.I. Delaware in good faith (the "Fair
Market Value Per Share"). Upon exercise of each assumed option of O.S.I.
California to purchase O.S.I. Delaware Common Stock, cash will be paid by O.S.I.
Delaware in lieu of any fractional share of O.S.I. Delaware Common Stock,
respectively, issuable upon exercise of such option, and the amount of cash
received for such fractional share shall be the Fair Market Value Per Share upon
exercise thereof multiplied by the applicable fraction, less the unpaid exercise
price per share for such fraction.
10. EMPLOYEE BENEFIT PLANS. At the Effective Time, the
obligations of O.S.I. California under or with respect to every plan, trust,
program and benefit then in effect or administered by O.S.I. California for the
benefit of the directors, officers and employees of O.S.I. California or any of
its subsidiaries shall become the lawful obligations of O.S.I. Delaware and
shall be implemented and administered in the same manner and without
interruption until the same are
-3-
4
amended or otherwise lawfully altered or terminated. Effective at the Effective
Time, O.S.I. Delaware hereby expressly adopts and assumes all obligations of
O.S.I. California under such employee benefit plans.
11. 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 O.S.I. California 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
O.S.I. California, and otherwise to carry out the purposes of this Merger
Agreement. The officers and directors of the Surviving Corporation are fully
authorized in the name of and on behalf of O.S.I. California, 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.
12. CONDITION. The consummation of the Merger is subject to
the approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of O.S.I. California and by the sole stockholder of O.S.I.
Delaware, prior to or at the Effective Time.
13. ABANDONMENT. At any time before the Effective Time, this
Merger Agreement may be terminated and the Merger abandoned by the Board of
Directors of O.S.I. California or O.S.I. Delaware, notwithstanding approval of
this Merger Agreement by the Boards of Directors and shareholders of O.S.I.
California and O.S.I. Delaware.
14. AMENDMENT. At any time before the Effective Time, this
Merger Agreement may be amended, modified or supplemented by the Boards of
Directors of the Constituent Corporations, notwithstanding approval of this
Merger Agreement by the shareholders of O.S.I. California and O.S.I. Delaware;
provided, however, that any amendment made subsequent to the adoption of this
Agreement by the shareholders of O.S.I. California or the sole stockholder of
O.S.I. Delaware shall not: (i) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or upon
conversion of any shares of any class or series of O.S.I. California; (ii) alter
or change any of the terms of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger; or (iii) alter or change any of the
terms or conditions of this Merger Agreement, if any such alteration or change
would adversely affect the holders of any shares of any class or series of
O.S.I. California or O.S.I. Delaware.
15. 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.
16. GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to the principles of conflicts of law or
choice of laws, except to the extent that the laws of the State of Delaware
would apply in matters relating to the internal affairs of O.S.I. Delaware and
the Merger.
-4-
5
17. COUNTERPARTS. In order to facilitate the filing and
recording of this Merger Agreement, it may be executed in any number of
counterparts, each of which shall be deemed to be an original.
-5-
6
IN WITNESS WHEREOF, this Merger Agreement is hereby executed
on behalf of each of the Constituent Corporations and attested by their
respective officers hereunto duly authorized.
O.S.I. CORPORATION, OCULAR SCIENCES, INC.,
a California corporation a Delaware corporation
By: By:
Xxxx X. Xxxxx Xxxx X. Xxxxx
President and Chief Executive Officer President and Chief Executive
Officer
ATTEST: ATTEST:
By: By:
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Secretary Secretary
[Signature Page to Agreement and Plan of Merger]
-6-
