EXHIBIT 2.1
PLAN OF REORGANIZATION
This PLAN OF REORGANIZATION (this "Agreement"), dated effective as of [__],
2004, by and among TLC VISION CORPORATION, a corporation formed under the laws
of the Province of New Brunswick, OCCULOGIX, INC., a corporation existing under
the laws of Delaware, and OCCULOGIX, L.P., a Delaware limited partnership.
RECITALS:
WHEREAS, the parties hereto intend for TLC Vision Corporation to effect the
sale of and Occulogix, Inc. to acquire TLC Vision Corporation's 50 percent
indirect interest in Occulogix, L.P.(the "Acquisition");
WHEREAS, the parties desire to enter into this Agreement with respect to
the transactions contemplated by the Acquisition as set forth below;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree that the final transaction steps are as follows:
Section 1. Steps of Reorganization.
a. Occulogix L.P. ("OLP") will contribute all its assets (including its
intellectual property), other than the assets representing the
Canadian branch, to Occulogix U.S. LLC, a newly formed Delaware
limited liability company ("US LLC"), and US LLC will assume all
liabilities other than liabilities relating to the Canadian branch, in
exchange for 100 membership units. OLP and US LLC will enter into a
license for the use by OLP of the intellectual property in Canada. The
license will be a royalty free license (presumably short-term).
x. XXX will distribute 50 membership units of US LLC to each of TLC
Apheresis, L.P. ("TLC LP") and Occulogix Holdings, Inc. ("Holdings").
c. TLC LP will distribute 50 membership units of US LLC to TLC Apheresis
(USA) Inc. ("TLC USA Inc.") in exchange for the TLC LP limited
partnership interest owned by TLC USA Inc., and TLC USA Inc. will
withdraw as a limited partner in TLC LP. As a result, TLC USA Inc. and
Holdings will be equal members in US LLC, and TLC Vision Corporation
("TLC Canada") will own the entire limited partner interest in TLC LP
with TLC Apheresis Inc. as the general partner.
d. TLC USA Inc. will merge with and into Holdings, and TLC Vision will
receive Occulogix, Inc. ("OI") common shares in exchange for its TLC
USA Inc. shares. As a result of the merger, Holdings will own all the
units of US LLC, and US LLC will be disregarded for U.S. federal
income tax purpose.
e. OI will organize a newly formed Nova Scotia unlimited liability
company, OccuLogix Exchangeco ULC ("OI NSULC"), which for U.S. federal
income tax purposes will be a pass-through entity and will allocate
all its income and loss to OI.
f. OI NSULC will be appointed general partner of TLC LP. As a result, TLC
LP's general partner will be OI NSULC and limited partner will be TLC
Canada.
g. TLC LP will liquidate and distribute the OLP limited partnership
interest and Occulogix Management Inc. ("OGP") shares to TLC Canada.
h. TLC Canada will transfer its OLP limited partnership interest and OGP
shares to OI NSULC in exchange for OI NSULC units that are
exchangeable into OI shares. In conjunction with the issuance of the
exchangeable units, OI will be provided an overriding contractual
right to purchase the OI NSULC exchangeable units from TLC Canada in
exchange for OI stock where TLC Canada first exercises its exchange
right under the terms of the exchangeable units against OI NSULC.
Section 2. Conditions of Closing. The parties agree that the completion of
the Acquisition is conditional upon delivery of appropriate tax and corporate
opinions being delivered by Torys LLP and acceptable to all parties.
Section 3. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Neither Party may assign this Agreement or any
of its rights, interests or obligations hereunder without the prior written
approval of the other party.
Section 4. Headings. The section headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 5. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matters hereof, and
supersedes any prior understandings, term sheets, agreements or representations
by and between the parties, written or oral, to the extent they related in any
way to the subject matter hereof.
Section 6. Waiver, Amendment. Except as expressly provided in this
Agreement, no amendment or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any provision
of this Agreement shall constitute a waiver of any other provision nor shall any
waiver of any provision of this Agreement constitute a continuing waiver unless
otherwise expressly provided.
Section 7. Severability. If any provisions of this Agreement for any reason
is held illegal or unenforceable, such provision shall be deemed separable from
the remaining provisions of this Agreement and shall in no way affect or impair
the validity or the enforceability of the remaining provisions of this
Agreement.
Section 8. Construction. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if jointly drafted by the parties and no presumption or burden of proof shall
arise favoring or disfavoring either party by virtue of the authorship of any
provision of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Section 9. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York without giving
effect to any choice
or conflict of law provision or rule (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
Section 10. Counterparts. This Agreement may be executed, including by
facsimile signature, in one or more counterparts, each of which shall be deemed
an original but all of which together, shall constitute one and the same
instrument.
Section 11. Further Assurances. Each of the parties hereto shall promptly
do, make, execute or deliver, or cause to be done, made, executed or delivered,
all such further acts, documents and things as the other party hereto may
reasonably require from time to time for the purpose of giving effect to this
Agreement and shall use reasonable efforts and take all such steps as may be
reasonably within its power to implement to their full extent the provisions of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
The undersigned parties have executed this Plan of Reorganization as of the
date first set forth above.
OCCULOGIX, INC. TLC VISION CORPORATION
By: _______________________________ By: _________________________________
Name: Name:
Title: Title:
OCCULOGIX, L.P.
By: _________________________________
Name:
Title:
