Exhibit 2.3
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization is entered into as of this 6th
day of June, 2000 by and among XXXXXXX RIVER LABORATORIES INTERNATIONAL, INC., a
Delaware corporation ("Xxxxxxx River"), CRL ACQUISITION LLC, a Delaware Limited
Liability Company that has elected to be treated as a corporation for U.S.
federal and state income tax purposes ("LLC"), and B&L CRL, INC., a Delaware
corporation and a subsidiary of Bausch & Lomb Incorporated ("CRL").
RECITALS
A. LLC, a limited liability company organized in Delaware which has
elected to be treated as an association taxable as a corporation for all
relevant Federal and state income tax purposes, is owned by DLJ Merchant Banking
Partners, II, L.P. and affiliated funds and entities (collectively, the "DLJMB
Funds"), certain members of the management of Xxxxxxx River and certain other
investors. On September 29, 1999, LLC acquired 87.5% of the common stock of
Xxxxxxx River. The remaining 12.5% of the stock of Xxxxxxx River was retained by
CRL.
B. As a result of recent favorable financial developments affecting the
value of the business of Xxxxxxx River=s operating subsidiary and the biotech
industry it serves, the parties have determined that the business objectives of
the participants can best be advanced by an initial public offering of shares of
common stock of Xxxxxxx River. In order to insure that substantially all the
present economic owners of the business, including particularly the individuals
directly involved in the management of the enterprise, hold shares of common
stock in the same corporate entity that will offer stock to the public, the
parties have undertaken to restructure their present ownership arrangement.
C. The proposed Plan of Reorganization which, as between the parties to
this Agreement, is intended to qualify as a reorganization within the meaning of
Section 368(a)(1)(D) of the Internal Revenue Code for Federal income tax
purposes and the comparable provisions of the income tax laws of all relevant
states, involves (i) LLC and CRL, the present shareholders of Xxxxxxx River,
exchanging the shares of common stock they presently hold for shares of new
common stock of Xxxxxxx River ("New Stock") (on the basis of 1.9269802 shares of
New Stock for each share presently held); (ii) the termination of LLC=s status
as a corporate entity for Federal and state income tax purposes; and (iii) LLC=s
distribution of all of the New Stock received in the exchange allocable to the
individual members of LLC engaged in the management of Xxxxxxx River to such
individuals and 90% of the remaining shares of New Stock received in the
exchange to its remaining members.
ACCORDINGLY, on the basis of the respective representations, warranties
and covenants set forth below, the parties hereto agree as follows:
Section 1. REORGANIZATION EXCHANGE. Subject to the conditions set
forth herein, at the Closing (as defined below): (a) LLC shall transfer and
deliver to Xxxxxxx River all of LLC's then-existing assets and business
(including without limitation 9,000,000 shares of the common stock of Xxxxxxx
River), free and clear of all liabilities, obligations, claims, security
interests and encumbrances, in exchange for 17,342,822 shares of the New
Stock, and (b) CRL shall transfer and deliver to Xxxxxxx River all of its
1,285,715 shares of common stock of Xxxxxxx River (together with the
9,000,0000 shares being transferred and delivered by LLC, the "Old Shares"),
free and clear of all liabilities, obligations, claims, security interest and
encumbrances, in exchange for 2,477,547 shares of New Stock.
Section 2. CLOSING. The transfer and exchange shall take place at
the offices of Ropes & Xxxx at the time and date mutually agreed to by the
parties hereto but in no event later than immediately prior to the Securities
and Exchange Commission declaring effective the Registration Statement on
Form S-1 (Registration No. 333-35524) filed by Xxxxxxx River on April 25,
2000, as amended by Amendment No. 1 thereto filed on June 6, 2000, relating
to its initial public offering of its common stock (the "Closing"). From time
to time, whether at or after the Closing and without further consideration,
each party hereto shall execute and deliver such instruments of conveyance
and transfer and take such other actions as the other party may reasonably
require to effect the exchange.
Section 3. DISTRIBUTION BY LLC. As soon as practicable following the
Closing and in accordance with the plan of reorganization contemplated by
this Agreement, LLC shall take all such action as may be necessary or
appropriate to terminate its existence as a corporation for Federal and state
income tax purposes and distribute to its members who are employees of
Xxxxxxx River their pro-rata share of the New Stock received by LLC in the
exchange and distribute to the remaining members of LLC on a pro rata basis
90% of the remaining New Stock received by LLC in the exchange.
Section 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1. LLC represents, warrants and agrees that:
(a) ORGANIZATION AND GOOD STANDING. LLC is a limited
liability company duly organized, validly existing and in
good standing under the laws of Delaware and has all the
power and authority necessary to carry on its business as
now conducted and to enter into and carry out the
transactions contemplated by this Agreement and Plan of
Reorganization.
(b) LIABILITIES. All liabilities, if any, of LLC will be
satisfied by LLC or its members in connection with the
liquidating transaction described below and LLC will
indemnify and hold Xxxxxxx River harmless from any such
claim or liability.
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(c) TAX STATUS AND ASSETS TRANSFERRED. (i) LLC effectively
elected to be taxed as a corporation for all relevant
Federal and state tax purposes as of the date of its
formation; and (ii) as a result of the exchange described
in Section 1 hereof, Xxxxxxx River will acquire at least 90
percent of the fair market value of the net assets and at
least 70 percent of the fair market value of the gross
assets held by LLC prior to the exchange.
4.2. Xxxxxxx River represents, warrants and agrees that:
(a) ORGANIZATION AND GOOD STANDING. Xxxxxxx River is a
corporation duly organized, validly existing and in good
standing under the laws of Delaware and has all the power
and authority necessary to carry on its business as now
conducted and to enter into and carry out the transactions
contemplated by this Agreement and Plan of Reorganization.
(b) OUTSTANDING STOCK. Immediately following the exchange
contemplated by Section 1, but prior to the contemplated
public offering of Xxxxxxx River's New Stock, the total
number of shares of New Stock that will be outstanding is
19,820,369.
4.3. CRL represents, warrants and agrees that:
(a) ORGANIZATION AND GOOD STANDING. CRL is a corporation
duly organized, validly existing and in good standing under
the laws of Delaware and has all the power and authority
necessary to carry on its business as now conducted and to
enter into and carry out the transactions contemplated by
this Agreement and Plan of Reorganization.
Section 5. GENERAL PROVISIONS.
5.1. ENTIRE AGREEMENT. This Agreement and Plan of Reorganization
represents the entire agreement of the parties' hereto.
5.2. EXPENSES. Any expenses in connection with this Agreement or
the transactions herein provided for shall be paid for by
the party incurring such expenses.
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5.3. NOTICES. All notices, requests, demands and other
communication pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given if delivered or
mailed, postage prepaid to Xxxxxxx River at:
Xxxxxxx River Laboratories International, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx
or if to LLC, at
CRL Acquisition LLC
x/x XXX Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
or if to CRL, at
B&L CRL, Inc.
c/o Bausch & Lomb Incorporated
Xxx Xxxxxx & Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
5.4. COUNTERPARTS. This Agreement and Plan of Reorganization may
be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5. GOVERNING LAW. This Agreement and Plan of Reorganization
shall be governed by and construed in accordance with the
laws of the State of Delaware.
5.6. NO WAIVER. The parties agree that nothing in this Agreement
and Plan of Reorganization shall constitute a waiver of any
rights of any of the parties or their related entities under
the Recapitalization Agreement dated as of July 25, 1999, by
and among Bausch & Lomb Incorporated, Xxxxxxx River, CRL and
certain other entities, as amended by Amendment No. 1
thereto dated as of September 1, 1999, and the other
agreements executed in connection therewith.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement and
Plan of Reorganization as of the date first above written.
XXXXXXX RIVER LABORATORIES INTERNATIONAL, INC.
/s/ Xxxxxxx River Laboratories International, Inc.
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CRL ACQUISITION LLC
/s/ CRL Acquisition LLC
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B&L CRL, INC.
/s/ B&L CRL, Inc.
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