exv10w2



 



	 	 	 
	Exhibit 10.2

	 	Form of Agreement and Plan of Merger by and between Bone Care
International, Inc., a Wisconsin corporation, and Bone Care International,
Inc., a Delaware corporation.









AGREEMENT AND PLAN OF MERGER



BONE CARE INTERNATIONAL, INC.



A WISCONSIN CORPORATION



AND



BONE CARE INTERNATIONAL, INC.



A DELAWARE CORPORATION


     
This Agreement and Plan of Merger (this
“Agreement”) is dated as
of                     by
and between Bone Care International, Inc., a Wisconsin
corporation (“Bone Care Wisconsin”), and Bone Care
International, Inc., a Delaware corporation (“Bone Care
Delaware”). Bone Care Wisconsin and Bone Care Delaware are
sometimes referred to as the “Constituent
Corporations.”




RECITALS


     
A. Bone Care Wisconsin is a corporation duly
organized and existing under the laws of the State of Wisconsin
and has an authorized capital of 30,000,000 shares,
28,000,000 of which are designated Common Stock and 2,000,000 of
which are designated “Preferred Stock.” On the date
hereof,                      shares
of Common Stock are issued and outstanding, and no shares of
Preferred Stock are issued or outstanding.



     
B. Bone Care Delaware is a corporation duly
organized and existing under the laws of the State of Delaware
and has an authorized capital of 85,000,000 shares,
75,000,000 of which are designated Common Stock and 10,000,000
of which are designated “Preferred Stock.”. On the
date hereof, 100 shares of Common Stock are issued and
outstanding, all of which are held by Bone Care Wisconsin and no
shares of Preferred Stock are issued or outstanding.



     
C. The respective Boards of Directors of
each Constituent Corporation have determined that it is
advisable and in the best interests of such Constituent
Corporation to merge Bone Care Wisconsin with and into Bone Care
Delaware upon the terms and conditions herein provided and have
approved this Agreement and directed that this Agreement be
submitted to a vote of their respective shareholders and, if so
approved, executed by the undersigned officers; and



     
D. The Constituent Corporations intend that
the merger described herein qualify as a
“reorganization” under the provisions of
Section 368 of the Internal Revenue Code of 1986, as
amended.



     
NOW, THEREFORE, in
consideration of the mutual agreements and covenants set forth
herein, Bone Care Wisconsin and Bone Care Delaware hereby agree
as follows:




I.     Merger


     
1.1. Merger.
Upon the terms and subject to the conditions of this Agreement,
and in accordance with the Delaware General Corporation Law and
the Wisconsin Business Corporation Law, Bone Care Wisconsin
shall be merged with and into Bone Care Delaware (the
“Merger”) at the Effective Time (as defined in
Section 1.2). Following the Merger, the separate existence
of Bone Care Wisconsin shall cease and Bone Care Delaware shall
continue as the corporation surviving the Merger (the
“Surviving Corporation”).



     
1.2. Filing and
Effectiveness. The Merger shall become
effective when a Certificate of Merger, executed in accordance
with the requirements of the Delaware General Corporation Law,
is filed with the Secretary of State of the State of Delaware.
Such filing shall be made at such time as determined by the
respective Boards of Directors of the Constituent Corporations
which shall be after:




		
	 	     
    (a) The approval of this Agreement by the
    shareholders of each Constituent Corporation in accordance with
    the requirements of the Delaware General Corporation Law and the
    Wisconsin Business Corporation Law, including the approval of a
    plan of merger in accordance with Section 180.1103 of the
    Wisconsin Business Corporation Law;
    
	 
	 	     
    (b) The filing with the Wisconsin Department
    of Financial Institutions of Articles of Merger, executed in
    accordance with the requirements of the Wisconsin Business
    Corporation Law.
    




     
The date and time when the Merger becomes
effective is the “Effective Time.”



 








 



     
1.3. Effects of the
Merger. At the Effective Time, the
separate existence of Bone Care Wisconsin shall cease and the
Merger shall have the effects set forth in this Agreement and
the applicable provisions of the Delaware General Corporation
Law and the Wisconsin Business Corporation Law. Bone Care
Delaware, as the Surviving Corporation, shall possess all the
rights, privileges, powers and franchises as well of a public as
of a private nature, and be subject to all the restrictions,
disabilities and duties of each of the Constituent Corporations;
and the rights, privileges, powers and franchises of each of the
Constituent Corporations and all property, real, personal and
mixed, and all debts due to each of the Constituent Corporations
on whatever account, as well for stock subscriptions as all
other things in action or belonging to each of the Constituent
Corporations shall be vested in Bone Care Delaware as the
Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be
thereafter as effectually the property of Bone Care Delaware as
the Surviving Corporation as they were of each of the
Constituent Corporations, but all rights of creditors and all
liens upon any property of any of the Constituent Corporations
shall be preserved unimpaired, and all debts, liabilities and
duties of the Constituent Corporations shall thenceforth attach
to the Surviving Corporation and may be enforced against it to
the same extent as if said debts, liabilities and duties had
been incurred or contracted by it.




II.     Charter and
By-laws; Directors and Officers


     
2.1. Certificate of Incorporation;
By-laws. The Certificate of
Incorporation of Bone Care Delaware in effect immediately prior
to the Effective Time will continue in full force and effect as
the Certificate of Incorporation of the Surviving Corporation
until duly amended. The By-laws of Bone Care Delaware in effect
immediately prior to the Effective Time will continue in full
force and effect as the By-laws of the Surviving Corporation
until duly amended.



     
2.2. Directors and
Officers. The directors and officers
of Bone Care Wisconsin at the Effective Time will be the
directors and officers of the Surviving Corporation until their
successors are duly elected and qualified or until their earlier
resignation or removal.




III.     Conversion
of Securities


     
3.1. Bone Care Wisconsin Common
Shares. As of the Effective Time, by
virtue of the Merger and without any action on the part of
either of the Constituent Corporations or the holders of any
securities of either Constituent Corporation, each share of Bone
Care Wisconsin Common Stock issued and outstanding immediately
prior thereto will be converted into and become one fully paid
and nonassessable share of Common Stock of the Surviving
Corporation. The registered owner of any outstanding certificate
for shares of Bone Care Wisconsin will thereafter and until such
certificate is surrendered for transfer or otherwise accounted
for to the Surviving Corporation, have and be entitled to
exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of
Common Stock of the Surviving Corporation represented by such
outstanding certificate as provided above.



     
3.2. Bone Care Wisconsin Options and
Rights. As of the Effective Time, by
virtue of the Merger and without any action on the part of
either of the Constituent Corporations or the holders of any
securities of either Constituent Corporation, the Surviving
Corporation will assume and continue the stock option plans and
all other employee benefit plans of Bone Care Wisconsin. Each
outstanding option or right to purchase or otherwise acquire
shares or other securities of Bone Care Wisconsin will become,
without any action on the part of either of the Constituent
Corporations or the holders of any securities of either of the
Constituent Corporations, an option or right to purchase or
otherwise acquire shares or other securities of the Surviving
Corporation, on the same terms and conditions and at an exercise
or purchase or other price per share or security equal to the
exercise or purchase or other price per share or security
applicable to any such Bone Care Wisconsin option or right to
purchase or otherwise acquire at the Effective Time.



     
A number of shares of the Surviving Corporation
will be reserved for issuance upon the exercise of options, or
rights to purchase or otherwise acquire equal to the number of
shares or other securities of Bone Care Wisconsin so reserved
immediately prior to the Effective Time.



     
3.3. Bone Care Delaware Common
Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of
either of the Constituent Corporations or the holders of any
securities of either Constituent Corporation, each share of Bone
Care Delaware Common Stock issued and outstanding immediately
prior thereto will be cancelled and returned to the status of
authorized but unissued shares.



 








 




IV.     General


     
4.1. Covenants of Bone Care
Delaware. Bone Care Delaware agrees
that it will, on or before the Effective Time take all actions
as may be required by the Wisconsin Business Corporation Law to
effect the Merger and to qualify Bone Care Delaware to do
business in Wisconsin following the Merger.



     
4.2. Further
Assurances. When required Bone Care
Delaware or by its successors or assigns, Bone Care Wisconsin
shall execute and deliver any deeds and other instruments and
take such other actions as may be appropriate or necessary to
vest or perfect or conform of record the title and possession of
all the property, interest, assets, rights, privileges,
immunities, powers, franchises and authority of Bone Care
Wisconsin and otherwise to carry out the purposes of this
Agreement. The officers and directors of Bone Care Delaware are
fully authorized in the name and on behalf of Bone Care
Wisconsin or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.



     
4.3. Abandonment.
At any time before the Effective Time, this Agreement may be
terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either Bone Care
Wisconsin or of Bone Care Delaware, or of both, notwithstanding
the approval of this Agreement by the shareholders of Bone Care
Wisconsin or by the sole stockholder of Bone Care Delaware, or
by both.



     
4.4. Amendment.
The Board of Directors of the Constituent Corporations may amend
this Agreement at any time prior to the filing of this Agreement
or certificate in lieu thereof with the Secretary of State of
the State of Delaware, provided that an amendment made
subsequent to the adoption of this Agreement by the shareholders
of either Constituent Corporation may not: (1) alter or
change the amount or kind of shares, securities, cash, property
and/or rights to be received in exchange for or on conversion of
all or any of the shares of any class or series thereof of such
Constituent Corporation, (2) alter or change any term of
the Certificate of Incorporation of the Surviving Corporation to
be effected by the Merger, or (3) alter or change any of
the terms and conditions of this Agreement if such alteration or
change would materially and adversely affect the holders of any
class or series of capital stock of either Constituent
Corporation.



     
4.5. Registered
Office. The registered office of the
Surviving Corporation in the State of Delaware is located at
1209 Orange Street, City of Wilmington, County of Newcastle,
Delaware, 19801 and The Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.



     
4.6. Agreement.
Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 1600
Aspen Commons, Middleton, Wisconsin 53562, and copies thereof
will be furnished to any shareholder of either Constituent
Corporation, upon request and without cost.



     
4.7. Governing
Law. This Agreement shall in all
respects be construed, interpreted and enforced in accordance
with the governed by the laws of the State of Delaware and, so
far as applicable, the merger provisions of the Wisconsin
Business Corporation Law.



     
4.8. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which
together constitute one and the same instrument.



 








 



     
IN WITNESS WHEREOF,
this Agreement having first been
approved by the resolutions of the Board of Directors of Bone
Care Delaware and Bone Care Wisconsin, is hereby executed on
behalf of each of such two corporations and attested by their
duly authorized officers.




		
	 	
    BONE CARE INTERNATIONAL, INC.,
    
	 	
    A DELAWARE CORPORATION
    





			
	 	By: 	




		
	 	
    

	 	
    Name:        



			
	 	Title:	






ATTEST:









Name:        



		
	Title:	





		
	 	
    BONE CARE INTERNATIONAL, INC.,
    
	 	
    A DELAWARE CORPORATION
    





			
	 	By: 	




		
	 	
    

	 	
    Name:        



			
	 	Title:	






ATTEST:









Name:        



		
	Title: