EXHIBIT D
to
Reorganization
Agreement
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated as of
_________, 1997, by and between Concentra Managed Care, Inc., a Delaware
corporation ("Holding Company"), and OccuSystems, Inc., a Delaware corporation
("OccuSystems"). Holding Company and OccuSystems are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. This Agreement is being entered into pursuant to an Agreement and
Plan of Reorganization dated as of April 21, 1997 (the "Reorganization
Agreement"), by and among OccuSystems, Holding Company and CRA Managed Care,
Inc. ("CRA"), a Massachusetts corporation. The Reorganization Agreement
provides for, among other things, (i) the merger of OccuSystems with and into
Holding Company and (ii) the merger of a wholly-owned subsidiary of Holding
Company with and into CRA. All defined terms that are not otherwise defined
herein shall have the meaning ascribed to such terms in the Reorganization
Agreement.
B. The number of outstanding shares of common stock, par value $.01 per
share, of Holding Company (the "Holding Company Common Stock") is 100, all of
which shares are of one class and all of which shares are entitled to vote.
The number of outstanding shares of the common stock, par value $.01 per
share, of OccuSystems (the "OccuSystems Common Stock") is _______, all of
which shares are of one class and all of which shares are entitled to vote.
C. The respective Boards of Directors of Holding Company and OccuSystems
have approved this Agreement and have directed that this Agreement be
submitted to a vote of the stockholders of Holding Company and the
stockholders of OccuSystems.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Holding Company and OccuSystems hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
Section 1.1 MERGER. In accordance with the provisions of this
Agreement and the Delaware General Corporation Law (the "DGCL"), at the
Effective Time of the OccuSystems Merger (as hereinafter defined), OccuSystems
shall be merged with and into Holding Company (the "OccuSystems Merger") and
the separate corporate existence of OccuSystems shall cease. Holding Company
shall be the surviving corporation in the OccuSystems Merger (hereinafter
sometimes referred to as the "Surviving Corporation") and shall continue its
corporate existence under the laws of the State of Delaware.
Section 1.2 FILING AND EFFECTIVENESS. The OccuSystems Merger shall
become effective when the following actions have been completed:(a) the
Reorganization Agreement and the OccuSystems Merger shall have been adopted
and approved by the stockholders of OccuSystems
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and the stockholders of Holding Company in accordance with the requirements of
the DGCL; and (b) an executed Certificate of Merger or an executed counterpart
of this Agreement meeting the requirements of the DGCL shall have been filed
with the Secretary of State of the State of Delaware. The date and time when
the OccuSystems Merger shall become effective, as hereinabove provided, is
herein called the "Effective Time of the OccuSystems Merger."
Section 1.3 EFFECT OF THE MERGER. At the Effective Time of the
OccuSystems Merger, (a) the separate existence of OccuSystems shall cease and
Holding Company, as the Surviving Corporation, shall possess all the rights,
privileges, powers, franchises and authority, both public and private, and be
subject to all the restrictions, disabilities and duties of the Constituent
Corporation and (b) the Surviving Corporation shall be vested with all assets
and property, real, personal and mixed, and every interest therein, wherever
located, belonging to each of the Constituent Corporations and shall be liable
for all the obligations and liabilities of each of the Constituent
Corporations, all as more fully provided under the applicable provisions of
the DGCL.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
Section 2.1 CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Holding Company as in effect immediately prior to the
Effective Time of the OccuSystems Merger shall be the Certificate of
Incorporation of the Surviving Corporation immediately after the Effective
Time of the OccuSystems Merger.
Section 2.2 BYLAWS. The Bylaws of Holding Company as in effect
immediately prior to the Effective Time of the OccuSystems Merger shall be the
Bylaws of the Surviving Corporation immediately after the Effective Time of
the OccuSystems Merger.
Section 2.3 DIRECTORS AND OFFICERS. The directors and officers of
Holding Company immediately prior to the Effective Time of the OccuSystems
Merger shall be the directors and officers of the Surviving Corporation until
their successors shall have been duly elected and qualified in accordance with
applicable law.
ARTICLE III
CONVERSION OF STOCK
Section 3.1 OCCUSYSTEMS COMMON STOCK. At the Effective Time of the
OccuSystems Merger, each share of OccuSystems Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the OccuSystems
Merger and without any action by the Constituent Corporations, the holder of
such share or any other person, be converted into the right to receive one
(the "OccuSystems Ratio") share of Holding Company Common Stock, payable upon
the surrender of the certificates formerly representing OccuSystems Common
Stock pursuant to Section 3.4. Each certificate which immediately prior to
the Effective Time of the OccuSystems Merger represented outstanding shares of
OccuSystems Common Stock shall, on and after the Effective Time of the
OccuSystems Merger, be deemed for all purposes to represent the right to
receive the number of
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shares of Holding Company Common Stock into which the shares of OccuSystems
Common Stock represented by such certificate shall have been converted
pursuant to this Section 3.1.
Section 3.2 HOLDING COMPANY COMMON STOCK. At the Effective Time of the
OccuSystems Merger, each share of Holding Company Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the OccuSystems
Merger and without any action by the Constituent Corporations, the holder of
such share or any other person, be canceled without payment of any
consideration therefor and cease to exist and be outstanding.
Section 3.3 FRACTIONAL SHARES, ETC. No certificate or scrip
representing fractional shares of Holding Company Common Stock shall be issued
upon the surrender for exchange of Certficates. In lieu of any fractional
shares, each holder of shares of Converted Stock who would otherwise have been
entitled to a fraction of a share of Holding Company Common Stock upon
surrender of Certificates for exchange will be paid an amount of cash (without
interest) in accordance with the terms and conditions of Section 4.5 of the
Reorganization Agreement.
Section 3.4 EXCHANGE FUND EXCHANGE PROCEDURES, ETC. The surrender and
exchange of Certificates for shares of Holding Company Common Stock shall be
made in accordance with the terms and conditions of Section 4.6 of the
Reorganization Agreement.
ARTICLE IV
GENERAL
Section 4.1 FURTHER ASSURANCE. 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 OccuSystems such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or confirm of record or otherwise by Surviving Corporation the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of OccuSystems and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of OccuSystems or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
Section 4.2 TERMINATION. At any time before the Effective Time of the
OccuSystems Merger, this Agreement may be terminated and the OccuSystems
Merger may be abandoned for any reason whatsoever by the Board of Directors of
either OccuSystems or Holding Company, or of both, notwithstanding the
approval of this Agreement by the stockholders of OccuSystems or the
stockholders of Holding Company. In the event of the termination of this
Agreement, this Agreement shall forthwith become void and there shall be no
liability on the part of either of the parties hereto except as otherwise
provided in the Reorganization Agreement.
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Section 4.3 COUNTERPARTS. In order to facilitate the filing and
recording of this Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
Section 4.4 AMENDMENT. This Agreement shall not be amended other than
pursuant to an amendment to the Reorganization Agreement approved in the
manner therein provided. If any such amendment to the Reorganization
Agreement is so approved, any amendment to this Agreement required by such
amendment to the Reorganization Agreement shall be effected by the parties
hereto by action taken by their respective Boards of Directors.
Section 4.5 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each of
the Constituent Corporations.
CONCENTRA MANAGED CARE, INC.
a Delaware corporation
By:
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Name:
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Title:
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OCCUSYSTEMS, INC.
a Delaware corporation
By:
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Name:
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Title:
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