Plan and Agreement of Merger

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This Plan and Agreement of Merger sets out all terms and conditions which must be met before two companies can merge. It also specifies the name of the merged company.

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This Plan and Agreement of Merger is the definitive agreement between two corporations who desire to merge into one. It contains provisions regarding: i) pending and subsequent actions the parties would be obligated to perform; ii) how all stock will converted, issued and delivered; and how employment agreements will be adopted by the new corporation, as well as all stock option plans. It also sets forth representations and warranties of each corporation and how the new corporation will be organized and capitalized.

This Plan and Agreement of Merger contains the following:
  • Parties: Sets forth the name of the companies who desire to merge;
  • Merger/Effective Date: Sets out the name of the new company and effective date of merger, as well as rights, privileges and powers granted to the new company;
  • Employee Plans: Specifies the stock option, employment agreements or other agreements which will be assumed by the new company;
  • Representations and Warranties: Spells out the warranties and representations of both companies in regard to validity, capitalization and any pending litigation;
  • Conditions Prior to Closing: Specifies the conditions which must be met prior to the closing of this merger transaction;
  • Signatures: This document must be signed by representatives of both companies and attested by the company secretary.

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This attorney-prepared packet contains:
  1. General Information
  2. Instructions and Checklist
  3. Plan and Agreement of Merger
State Law Compliance: This form complies with the laws of all states
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Plan and Agreement of Merger

 

 

THIS PLAN AND AGREEMENT OF MERGER (this Agreement”) made and entered into this _____  day of ________  by and between __________________ CORPORATION, a ____________ [state] corporation (“__________________ CORPORATION”), and __________________ CORPORATION, a ___________ [state] corporation (“__________________ CORPORATION”);
 
RECITALS
 
WHEREAS, __________________ CORPORATION is a corporation duly organized and existing under the laws of the State of __________________;
 
WHEREAS, __________________ CORPORATION is a corporation duly organized and existing under the laws of the State of __________________;
 
WHEREAS, on the date of this Agreement, __________________ CORPORATION has authority to issue ________  shares of Common Stock, ________  par value (the “__________________ CORPORATION Common Stock”), of which ________  shares are issued and outstanding and ________  shares are reserved for issuance pursuant to the __________________ CORPORATION Incentive Stock Option Plan. Of the shares reserved for such option plan, options covering ________  are currently outstanding;
 
WHEREAS, on the date of this Agreement, __________________ CORPORATION has authority to issue ________  shares of common stock, $________  par value (the “__________________ CORPORATION Common Stock”), of which ________  shares of are issued and outstanding;
 
WHEREAS, the respective Boards of Directors of __________________ CORPORATION and __________________ CORPORATION deem it advisable and in the best interests of the corporations respective shareholders that __________________ CORPORATION be acquired by __________________ CORPORATION through a merger (Merger”) of __________________ CORPORATION and __________________ CORPORATION, who shall acquire all of the business, assets and goodwill, subject to the liabilities, of __________________ CORPORATION and that shares of __________________ CORPORATION Common Stock shall be converted to shares of __________________ CORPORATION Common Stock on the terms and conditions hereinafter set forth;
 
NOW, THEREFORE, in consideration of the mutual warranties and covenants set forth herein, the parties hereto agree as follows:
 
1. Merger of __________________ CORPORATION into __________________ CORPORATION. 
 
1.1 Merger of __________________ CORPORATION with and into __________________ CORPORATION. __________________ CORPORATION and __________________ CORPORATION hereby adopt the plan of reorganization encompassed by this Agreement and hereby agree that __________________ CORPORATION shall merge with and into __________________ CORPORATION on the terms and conditions set forth herein. __________________ CORPORATION will, upon the filing of the Certificate of Merger contemplated by _________________________________ [citation of applicable state statutes] (the Effective Date”), merge with and into __________________ CORPORATION, and thereafter the separate existence of __________________ CORPORATION will cease. As of the Effective Date, __________________ CORPORATION shall succeed to all of the rights, privileges, powers and property, including, without limitation, all rights, privileges, franchises, patents, trademarks, licenses, registrations, bank accounts, contracts, patents, copyrights and other assets of every kind and description of __________________ CORPORATION, and __________________ CORPORATION shall assume all of the obligations and liabilities of __________________ CORPORATION, excepting and excluding, (i) the minute books and stock records of __________________ CORPORATION insofar as they relate solely to its organization and capitalization, and (ii) the rights of __________________ CORPORATION arising out of this Agreement. The Merger will occur in accordance with the General Corporation Law of the State of __________________.
 
1.2 Pending and Subsequent Actions. __________________ CORPORATION will cooperate, and will cause its officers, directors and other employees to cooperate, with __________________ CORPORATION on and after the Effective Date (i) in effecting the collection of all receivables and other items owing to __________________ CORPORATION and (ii) in prosecuting claims and furnishing information, testimony and other assistance in connection with all actions, proceedings, arrangements or disputes based upon contracts, arrangements or acts of __________________ CORPORATION which were in effect or which occurred on or prior to the Merger.
2. Delivery of __________________ CORPORATION Common Stock and Assumption of Liabilities by __________________ CORPORATION. 
 
2.1 Conversion of Stock. Effective as of the Effective Date, each stock certificate representing shares of __________________ CORPORATION Common Stock, along with any and all accrued and unpaid dividend rights with respect thereto, shall be deemed to represent the respective numbers of shares of __________________ CORPORATION Common Stock, and each right to purchase shares of __________________ CORPORATION Common Stock (including employee stock options) shall be deemed to represent a right to purchase the respective number of shares of __________________ CORPORATION Common Stock, in each case as is determined by the formula set forth in Section 2.2.
 
2.2 Issuance and Delivery of __________________ CORPORATION Common Stock. Upon surrender of certificates representing __________________ CORPORATION Common Stock, __________________ CORPORATION will issue and deliver as provided in Section 2.3 certificates representing a number of whole shares of its Common Stock determined by the following exchange rate: ________  share(s) of __________________ CORPORATION Common Stock shall be issued in exchange for each ________  share(s) of __________________ CORPORATION Common Stock issued and outstanding on the Effective Date. Fractional shares of __________________ CORPORATION Common Stock shall not be issued, but their cash value, as determined in good faith by the board of directors of __________________ Corporation, shall be paid for the fractional shares.
 
2.3 Surrender and Conversion of __________________ CORPORATION Share Certificates. All persons holding shares of __________________ CORPORATION Common Stock shall surrender the certificates representing the shares of __________________ CORPORATION Common Stock, either by certified mail, return receipt requested, or in person to: ________ , or such other location as __________________ CORPORATION shall advise such holders in writing. Upon receipt of the surrendered share certificate of __________________ CORPORATION Common Stock, a replacement certificate reflecting shares of __________________ CORPORATION Common Stock subject to the exchange rate set forth in Paragraph 2.2 hereof shall be issued and caused to be delivered in accordance with this Agreement. Notwithstanding proposed exchanges of certificates, each certificate representing shares of __________________ CORPORATION Common Stock not physically surrendered pursuant to this section shall be deemed to represent shares of __________________ CORPORATION Common Stock and subject to the exchange rate set forth in Paragraphs 2.2 and 2.3 hereof.
 
2.4 Employee Plans. 
 
2.4.1 Stock Option Plans. __________________ Corporation shall assume each option to purchase shares of __________________ CORPORATIONS Common Stock (“__________________ Options”) outstanding at the Effective Date and each __________________ Option shall thereafter be exercisable for a number of shares of __________________ CORPORATION Common Stock equal to the number of shares of __________________ CORPORATION Common Stock subject to such option immediately prior to the Effective Date multiplied by ________ . The exercise price per share of __________________ Common Stock for such __________________ Option so assumed shall be the exercise price per share specified in such __________________ Option divided by ________ . Each of the assumed __________________ Options shall continue upon the same terms and conditions as were applicable prior the assumption, except for the adjustments contemplated immediately above.
 
2.4.2 Employment Agreements. As of the Effective Date, __________________ CORPORATION will adopt as employer mutatis mutandis all employment agreements and employment, salary and fringe benefit arrangements and obligations of __________________ CORPORATION.
 
2.4.3 Other Agreements. As of the Effective Date, __________________ CORPORATION will assume mutatis mutandis any and all agreements of __________________ CORPORATION, and agrees to be bound by the terms and conditions of each such agreement.
 
3. Dissenters Rights. Notwithstanding anything in this Agreement to the contrary, shares of __________________ CORPORATIONs Common Stock that are issued and outstanding immediately prior to the Effective Date and that are held by stockholders who have not voted such shares in favor of the Merger and who have delivered a written demand for appraisal of such shares in the manner provided in __________________________________ [citation of applicable state statutes] (Dissenting Shares”) shall have no right to receive any cash payment based upon the applicable exchange rate unless and until such holder shall have failed to perfect, or shall have effectively withdrawn or lost, such holders right to appraisal and payment under ____________ [state] Law. if such holder shall have so failed to perfect, or shall have effectively withdrawn or lost such right, such holders shares of __________________ CORPORATIONs Common Stock shall thereupon be deemed to have been cancelled and converted as described in paragraph ________  at the Effective Date, and each such share shall represent the right to receive the appropriate cash payment based upon the applicable exchange rate. __________________ CORPORATION shall give __________________ CORPORATION prompt notice of any demands received by __________________ CORPORATION for appraisal of its shares.
 
4. Representations and Warranties of __________________ CORPORATION.  __________________ CORPORATION represents and warrants to __________________ CORPORATION as follows:
 
4.1 Corporate Organization. __________________ CORPORATION is a corporation duly organized, validly existing and in good standing under the laws of the State of ________ , and is duly qualified to do business as a foreign corporation in each other jurisdiction in which the failure to so qualify would have a material adverse effect on its business as presently conducted and as proposed to be conducted.
 
4.2 Validity of Transaction. __________________ CORPORATION has full right, power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by __________________ CORPORATION and constitutes the valid and legally binding obligation of __________________ CORPORATION.
 
4.3 Capitalization. Immediately prior to the Effective Date, the authorized capital stock of __________________ CORPORATION shall consist solely of ________  shares of Common Stock, of which ________  shares will be issued and outstanding and ________  shares will be reserved for issuance to employees, directors and consultants, upon exercise of stock options. Except for the shares reserved for issuance as described above, __________________ CORPORATION has no agreement or understanding to issue any capital stock.
 
4.4 Litigation. __________________ CORPORATION is not a party to any litigation or any governmental proceeding and, to the best of its knowledge, there is no valid basis for any such litigation or proceeding. There is no judgment or order of any court or governmental authority in effect against __________________ CORPORATION.
 
5. Representations and Warranties of __________________ CORPORATION. __________________ CORPORATION represents and warrants to __________________ CORPORATION as follows:
 
5.1 Corporate Organization. __________________ CORPORATION is a corporation duly organized, validly existing and in good standing under the laws of the State of __________________, and is duly qualified to do business as a foreign corporation in each other jurisdiction in which the failure to so qualify would have a material adverse effect on its business as presently conducted and as proposed to be conducted.
 
5.2 Validity of Transaction. __________________ CORPORATION has full right, power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by __________________ CORPORATION and constitutes the valid and legally binding obligation of __________________ CORPORATION.
 
5.3 Capitalization. Immediately prior to the Effective Date, the authorized capital stock of __________________ CORPORATION shall consist solely of ________  shares of Common Stock, $________  par value.
 
5.4 Litigation. __________________ CORPORATION is not a party to any litigation or any governmental proceeding and, to the best of its knowledge, there is no valid basis for any such litigation or proceeding. There is no judgment or order of any court or governmental authority in effect against __________________ CORPORATION.
 
6. Conditions Precedent to __________________ Corporations Obligations to Close. __________________ CORPORATIONs obligation to consummate the Merger is subject to the satisfaction, on or before the Closing Date, of the following conditions:
 
(a) Performance of Acts and Undertakings of __________________ Corporation. Each of the acts and undertakings of __________________ CORPORATION to be performed on or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed.
 
(b) Certified Resolutions. __________________ CORPORATION shall have furnished __________________ CORPORATION with a copy, certified by __________________ CORPORATIONs secretary, of (1) a resolution or resolutions duly adopted by __________________ CORPORATIONs board of directors authorizing and approving this Agreement and directing that it be submitted to a vote of __________________ CORPORATIONs shareholders, and (2) a resolution or resolutions adopting this Plan and Agreement of Merger, duly approved by the holders of at least a majority of the total number of outstanding shares of common stock of __________________ CORPORATION.
 
(c) Continued Accuracy of __________________ Corporations Representations and Warranties. All of the representations and warranties of __________________ CORPORATION contained in this Agreement and in the Schedules furnished pursuant to paragraph 8 shall be true in every respect on and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of that date; and __________________ CORPORATION shall have received at the closing a certificate, dated the Closing Date and executed by the president or a vice president of __________________ CORPORATION, containing a representation and warranty to that effect.
(d) Opinion of __________________ Corporations Counsel Required. __________________ CORPORATION shall have furnished __________________ CORPORATION with a favorable opinion of ________ , counsel for __________________ CORPORATION, dated the Closing Date, substantially in the form attached hereto as Appendix ________ . In addition to matters specified in the form, the opinion shall include such other matters incident to the contemplated transactions as are reasonably requested by __________________ CORPORATION or its counsel.
 
(e) Opinion to __________________ Corporation of __________________ Corporations Counsel. __________________ CORPORATION shall have received the opinion of its counsel to the effect that the transactions contemplated by this Agreement will not violate any federal statute or any court decree or order, and that all legal matters relating to the consummation of the transactions contemplated by this Agreement have been or will be completed to the satisfaction of __________________ CORPORATIONs counsel in all material respects.
 
(f) Approvals From Authorities. __________________ CORPORATION shall have received, or shall have satisfied itself that it will receive, in form satisfactory to __________________ CORPORATION, all necessary approvals of the transactions contemplated by this Agreement from authorities having any jurisdiction over the business of __________________ CORPORATION of any __________________ CORPORATION Subsidiary, so that __________________ CORPORATION and __________________ CORPORATION Subsidiaries may continue to carry on their business as presently conducted after consummation of the Merger; and no such approval shall have been withdrawn or suspended.
 
(g) Consents. All consents of other parties to the mortgages, notes, leases, franchises, agreements, licenses, and permits of __________________ CORPORATION or any __________________ CORPORATION Subsidiary necessary to permit consummation of the Merger shall have been obtained.
 
(h) Adoption of Merger by Shareholders. At least a majority of the outstanding shares of __________________ CORPORATION Common Stock shall have been voted for the adoption of the Merger and Plan of Reorganization set forth in this Agreement.
 
(i) Dissenting Shares. Not more than ________  percent of the outstanding shares of __________________ CORPORATION Common Stock shall be “dissenting shares” within the definition of __________________________________ [citation of applicable state statutes].
 
(j) Employment Agreements. Those executives of __________________ CORPORATION and __________________ CORPORATION Subsidiaries designated by __________________ CORPORATION shall have entered into employment agreements on terms satisfactory to such executives or employees and their respective counsel and to __________________ CORPORATION and its counsel.
(k) Filing of Merger Agreement. The Plan and Agreement of Merger shall have been filed in the office of the Secretary of State or other office or each jurisdiction in which such filings are required in order for the Merger to become effective, or __________________ CORPORATION shall have satisfied itself that all such filings will be or are capable of being made effective as of the Closing Date.
 
(l) __________________ Corporations Delivery of Updated Schedules. __________________ CORPORATION shall have delivered the Schedules, updated through the Closing Date.
 
(m) __________________ Corporations Approval of Updated Schedules. In its sole and absolute discretion, __________________ CORPORATION shall be satisfied with any matter reflected, listed, or disclosed in the updated Schedules which was not reflected, listed, or disclosed in the original Schedules.
 
7. Condition Precedent to __________________ Corporations Obligation to Close. __________________ CORPORATIONs obligation to consummate the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions:
 
(a) Performance of Acts and Undertakings by __________________ Corporation. Each of __________________ CORPORATIONs acts and undertakings to be performed on or before the Closing Date pursuant to this Agreement shall have been performed.
 
(b) Certified Resolutions. __________________ CORPORATION shall have furnished __________________ CORPORATION with certified copies of (1) resolutions duly adopted by the board of directors of __________________ CORPORATION and the board of directors of __________________ CORPORATION Subsidiary authorizing and approving the execution and delivery of this Plan and Agreement of Merger and authorizing the consummation of the transactions contemplated by this Agreement, and (2) resolutions duly adopted by __________________ CORPORATION as sole shareholder of __________________ CORPORATION Subsidiary, adopting the plan of merger set forth in this Agreement.
 
(c) Continued Accuracy of __________________ Corporations Representations and Warranties. The representations and warranties of __________________ CORPORATION contained in this Agreement shall be true on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of that date; and __________________ CORPORATION shall have received at the closing a certificate, dated the Closing Date and executed on behalf of __________________ CORPORATION by its president or any vice president, containing a representation and warranty to that effect.
 
(d) Shareholder Vote. At least a majority of the outstanding shares of common stock of __________________ CORPORATION shall have been voted for the adoption of the Merger and Plan of Reorganization contemplated by this Agreement.
 
(e) Opinion of __________________ Corporations Counsel Required. __________________ CORPORATION shall have furnished __________________ CORPORATION with a favorable opinion of ________ , counsel for __________________ CORPORATION, which opinion shall be dated the Closing Date and shall include the following: ________ , and such other matters incident to the contemplated transactions as reasonably requested by __________________ CORPORATION or __________________ CORPORATIONs counsel.
8. Schedules. As soon as practicable, but in no event later than ________  days after the date of this Agreement, __________________ CORPORATION shall deliver to __________________ CORPORATION Schedules in the form attached to this Agreement as Appendix ________ . Each such Schedule shall have been executed by or on behalf of __________________ CORPORATION and shall be accompanied by a copy of each document referred to in the Schedule. Pursuant to paragraph 6(k), all Schedules shall be updated through the Closing Date; however, the updating of the Schedules shall not relieve __________________ CORPORATION of its responsibility to indemnify __________________ CORPORATION, as provided in paragraph 11, with respect to any information not disclosed in the original Schedules. Each matter disclosed in a Schedule shall be taken as relating only to that specific Schedule.
 
9. Investigation by __________________ Corporation. Prior to the Closing Date, __________________ CORPORATION may directly or through its representatives make such investigation of the assets and business of __________________ CORPORATION and its Subsidiaries (including, without limitation, confirmation of its cash, inventories, accounts, accounts receivable and liabilities, and investigation of its titles to and the condition of its property and equipment) as __________________ CORPORATION deems necessary or advisable. The investigation shall not affect (1) __________________ CORPORATIONs representations and warranties contained or provided for in this Agreement, (2) __________________ CORPORATIONs right to rely on those representations and warranties, or (3) __________________ CORPORATIONs right to terminate this Agreement as provided in this paragraph 9 and in paragraph 13. __________________ CORPORATION shall allow __________________ CORPORATION and its representatives full access, at reasonable times after the date of execution of this Agreement, to the premises and to all the books, records, and assets of __________________ CORPORATION and its Subsidiaries, and __________________ CORPORATIONs officers shall furnish to __________________ CORPORATION such financial and operating data and other information with respect to the business and properties of __________________ CORPORATION and each __________________ CORPORATION Subsidiary as __________________ CORPORATION shall from time to time reasonably request. __________________ CORPORATION agrees not to disclose any confidential information obtained in the course of its investigation or use it for any purposes other than evaluation of __________________ CORPORATION and its Subsidiaries with respect to the contemplated merger.
 
As soon as practicable, and in any event within __ [number] days after the receipt of (1) the last Schedule required to be delivered to __________________ CORPORATION by __________________ CORPORATION pursuant to paragraph ________  and (2) any supporting documentation requested by __________________ CORPORATION, __________________ CORPORATION shall give __________________ CORPORATION notice if __________________ CORPORATION has decided that it wishes to terminate this Agreement based on any information contained in any of the Schedules or obtained during the course of its investigation. The notice shall specify the information contained in the Schedules or obtained during the investigation on which __________________ CORPORATIONs decision to terminate is based. __________________ CORPORATION shall have 10 days after receipt of the notice to review that information with __________________ CORPORATION. If __________________ CORPORATION does not withdraw its notice within this 10-day period, then all further obligations of __________________ CORPORATION and of __________________ CORPORATION under this Agreement shall terminate without further liability of __________________ CORPORATION to __________________ CORPORATION or of __________________ CORPORATION to __________________ CORPORATION, except their respective obligations to return documents as provided in paragraph 16. If __________________ CORPORATION does not advise __________________ CORPORATION within the __ [number] day period specified in the first sentence above that it wishes to terminate this Agreement, __________________ CORPORATION shall be deemed to be satisfied with the information relating to __________________ CORPORATION and its Subsidiaries contained in the Schedules and/or obtained during the course of its investigation, subject to __________________ CORPORATIONs rights concerning the continued accuracy of __________________ CORPORATIONs warranties and representations set forth in paragraph 4.
 
10. Survival of Representations, Warranties, and Indemnities. The representations, warranties, and indemnities included or provided for in this Agreement or in any Schedule or certificate or other document delivered pursuant to this Agreement shall survive the Closing Date for a period of __ [number] years. No claim may be made under this paragraph unless written notice of the claim is given within that __-year [number] period.
 
11. Indemnification. Notwithstanding __________________ CORPORATIONs investigations of __________________ CORPORATION and its Subsidiaries before the Closing Date, and notwithstanding the fact that __________________ CORPORATION may be deemed satisfied as to certain matters investigated by __________________ CORPORATION, all as provided in paragraph 9, __________________ CORPORATION shall indemnify, defend, and hold __________________ CORPORATION and each of its subsidiaries harmless, to the maximum extent of (but limited to) the Escrow Fund provided for in this paragraph, from and against any and all losses, liabilities, costs, expenses, judgments, assessments, penalties, damages, deficiencies, suits, actions, claims, proceedings, demands, and causes of action, including but not limited to reasonable attorney fees, court costs, and related expenses, that were caused by, arose as a result of, or arose with respect to any of the following:
 
(a) Any inaccuracy in any representation or warranty or any breach of any warranty of __________________ CORPORATION under this Agreement or any Schedule, certificate, instrument, or other document delivered pursuant to this Agreement;
 
(b) Any failure of __________________ CORPORATION duly to perform or observe any term, provision, covenant, or agreement to be performed or observed by __________________ CORPORATION pursuant to this Agreement, and any Schedule, certificate, agreement, or other document entered into or delivered pursuant to this Agreement; or
(c) Any inaccuracy whatsoever in the Balance Sheet, whether such losses were known or unknown to __________________ CORPORATION or its Subsidiaries; provided, however, that __________________ CORPORATION and its subsidiaries shall not be indemnified and held harmless unless and until such damages, losses, and expenses exceed $________ , in which event, __________________ CORPORATION and its subsidiaries shall be indemnified and held harmless in full. All claims under this provision for indemnity shall be made within the time period and in the manner provided for in paragraph 11 and the Escrow Agreement attached hereto as Appendix ________ .
 
12. Establishment of Escrow. Upon closing, the parties shall forthwith enter into an escrow to carry out the terms of this Agreement, and an Escrow Fund shall be created consisting of the amount specified in paragraph 11. ________  shall act as Escrow Holder.
 
Escrow Holder shall hold and dispose of the Escrow Fund in accordance with the Escrow Agreement attached hereto as Appendix ________ . The parties to this Agreement understand and agree to the terms of the Escrow Agreement set forth as Appendix ________ , which when duly executed shall be incorporated as part of this Agreement.
 
The Escrow Fund shall remain in existence for ________  years after the Closing Date plus any extensions required by the terms of the Escrow Agreement (the Escrow Period”).
 
13. Further Assurances. __________________ CORPORATION and __________________ CORPORATION each agrees that from time to time, as and when requested by the other, it will execute, acknowledge, deliver and file all proper deeds, assurances, assignments, bills of sale, assumptions and other documents, and do, or cause to be done, all other acts and things necessary or proper in order to vest, perfect, assure or confirm in __________________ CORPORATION title to and possession of all the property, rights, privileges, powers, franchises, bank accounts, contracts, patents, copyrights, and stated liabilities of __________________ CORPORATION, or otherwise necessary or proper to carry out the intent and purposes of this Agreement.
 
14. Termination of this Agreement. In addition to the termination rights provided for in paragraph 9, this Agreement and the transactions contemplated under this Agreement may be terminated at any time prior to the Closing Date, either before or after the meeting of __________________ CORPORATIONs shareholders:
 
(a) By mutual consent of __________________ CORPORATION and __________________ CORPORATION;
 
(b) By __________________ CORPORATION if there has been a material misrepresentation or a material breach of warranty in __________________ CORPORATIONs representations and warranties set forth in this Agreement or in any Schedule or certificate delivered pursuant to this Agreement;
 
(c) By __________________ CORPORATION if there has been a material misrepresentation or a material breach of warranty in __________________ CORPORATIONS representations and warranties set forth in this Agreement;
 
(d) By __________________ CORPORATION or __________________ CORPORATION if either party shall have determined in its sole discretion that the transactions contemplated by this Agreement have become inadvisable or impracticable by reason of the institution or threat of institution, by governmental authorities (local, state, or federal) or by any other person, of material litigation or proceedings against either or both of the parties, it being understood and agreed that a written request by governmental authorities for information with respect to the proposed transactions, which information could be used in connection with such litigation or proceedings, may be deemed by __________________ CORPORATION or __________________ CORPORATION to be a threat of material litigation or proceedings, whether such request is received before or after the date of this Agreement;
 
(e) By __________________ CORPORATION if it has determined that the business, assets, or financial condition of __________________ CORPORATION and __________________ CORPORATION Subsidiaries, taken as a whole, have been materially and adversely affected, whether by reason of changes, developments, or operations in the ordinary course of business or otherwise;
 
(f) By __________________ CORPORATION or by __________________ CORPORATION if the Effective Date referred to in paragraph 1.1 has not occurred by ________ [date] ________ ; and
 
(g) By __________________ CORPORATION if it has determined that the business, assets or financial conditions of __________________ CORPORATION and its subsidiaries, taken as a whole, have been adversely affected, whether by reason of changes, developments, or operations in the ordinary course of business or otherwise.
 
15. Right to Proceed. In the event that this Agreement is terminated pursuant to this paragraph 15 or paragraph 9, or because of the failure to satisfy any of the conditions specified in paragraph 6 or paragraph 7, all further obligations of __________________ CORPORATION and of __________________ CORPORATION under this Agreement shall terminate without further liability of __________________ CORPORATION to __________________ CORPORATION or __________________ CORPORATION to __________________ CORPORATION, except for the obligations of both parties under paragraph 14 and of __________________ CORPORATION under paragraph 16; provided, however, anything in this Agreement to the contrary notwithstanding, that if __________________ CORPORATION fails to furnish any of the Schedules referred to in paragraph ________  or fails to satisfy any of the conditions specified in paragraph ________ , __________________ CORPORATION shall nonetheless have the right in its discretion, to proceed with the transactions contemplated by this Agreement, and if __________________ CORPORATION fails to satisfy any of the conditions specified in paragraph 6, __________________ CORPORATION shall nonetheless have the right, in its discretion, to proceed with the transactions contemplated by this Agreement.
16. Return of Documents in Event of Termination. In the event of the termination of this Agreement for any reason, __________________ CORPORATION will return to __________________ CORPORATION all documents, work papers, and other materials (including copies) relating to the transactions contemplated by this Agreement, whether obtained before or after execution of this Agreement. __________________ CORPORATION will not use any information so obtained for any purpose, and will take all practicable steps to have such information kept confidential.
 
17. Miscellaneous. 
 
(a) Amendments. At any time before or after approval and adoption by the shareholders of __________________ CORPORATION, this Agreement may be amended in any manner (except that the provisions of paragraph 2 may not be amended without the approval of the shareholders of __________________ CORPORATION) as may be determined in the judgment of the respective Boards of Directors of __________________ CORPORATION and __________________ CORPORATION to be necessary, desirable or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the purposes and intentions of this Agreement.
 
(b) Attorney Fees and Costs in Event of Termination. In the event of the termination of this Agreement for any reason, each party shall bear its own costs and expenses, including attorney fees.
 
(c) Public Announcement. Neither __________________ CORPORATION nor __________________ CORPORATION, without the consent of the other, shall make any public announcement or issue any press release with respect to this Agreement or the transactions contemplated by it, which consent shall not be unreasonably withheld.
 
(d) Meeting of __________________ Corporations Shareholders. __________________ CORPORATION shall take all necessary steps to call a meeting of its shareholders to be held within ________  days from the date of this Agreement, which number of days includes adequate time for the preparation and mailing of proxy statements if applicable. In all proxy statements or other communications with the shareholders on this subject, __________________ CORPORATIONs board of directors shall recommend to the shareholders that they adopt the plan of merger and approve the terms of this Agreement.
 
(e) Covenant to Operate in the Ordinary Course. Between the date of this Agreement and the Closing Date, __________________ CORPORATION shall operate its business only in the ordinary course and in a normal manner consistent with past practice. During this period, __________________ CORPORATION shall not encumber any asset or enter into any transaction or make any commitment relating to its assets or business otherwise than in the ordinary course of its business (consistent with its prior practices), or take any action that would render inaccurate any representation or warranty contained in this Agreement or would cause a breach of any other covenant under this Agreement, without first obtaining the written consent of __________________ CORPORATION.
(f) Governing Law; Successors and Assigns; Counterparts; Entire Agreement. This Agreement (a) shall be construed under and in accordance with the laws of the state of __________________; (b) shall be binding on and shall inure to the benefit of the parties to the Agreement and their respective successors and assigns; (c) may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts shall have been signed by each of the parties and delivered to __________________ CORPORATION and __________________ CORPORATION; and (d) embodies the entire agreement and understanding, superseding all prior agreements and understandings between __________________ CORPORATION and __________________ CORPORATION relating to the subject matter of this Agreement.
 
(g) Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the ________  day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
 
 
To __________________ CORPORATION and its Subsidiaries at: ________ [Address] 
 
To __________________ CORPORATION and its Subsidiary at: ________ [Address] 
 
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
 
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereto affixed effective as of the date first written above.
 
__________________ CORPORATION
a _______________  corporation
By: _______________  
 
_______________ , President
ATTEST:
 _______________
_______________ , Secretary
 
__________________ CORPORATION
a ___________ [state] corporation
By: _______________  
 
_______________ , President
ATTEST:
 _______________
_______________ , Secretary
 
Number of Pages17
DimensionsDesigned for Letter Size (8.5" x 11")
EditableYes (.doc, .wpd and .rtf)
UsageUnlimited number of prints
Product number#43682
This is the content of the form and is provided for your convenience. It is not necessarily what the actual form looks like and does not include the information, instructions and other materials that come with the form you would purchase. An actual sample can also be viewed by clicking on the "Sample Form" near the top left of this page.
 
 
Plan and Agreement of Merger

 

 

THIS PLAN AND AGREEMENT OF MERGER (this Agreement”) made and entered into this _____  day of ________  by and between __________________ CORPORATION, a ____________ [state] corporation (“__________________ CORPORATION”), and __________________ CORPORATION, a ___________ [state] corporation (“__________________ CORPORATION”);
 
RECITALS
 
WHEREAS, __________________ CORPORATION is a corporation duly organized and existing under the laws of the State of __________________;
 
WHEREAS, __________________ CORPORATION is a corporation duly organized and existing under the laws of the State of __________________;
 
WHEREAS, on the date of this Agreement, __________________ CORPORATION has authority to issue ________  shares of Common Stock, ________  par value (the “__________________ CORPORATION Common Stock”), of which ________  shares are issued and outstanding and ________  shares are reserved for issuance pursuant to the __________________ CORPORATION Incentive Stock Option Plan. Of the shares reserved for such option plan, options covering ________  are currently outstanding;
 
WHEREAS, on the date of this Agreement, __________________ CORPORATION has authority to issue ________  shares of common stock, $________  par value (the “__________________ CORPORATION Common Stock”), of which ________  shares of are issued and outstanding;
 
WHEREAS, the respective Boards of Directors of __________________ CORPORATION and __________________ CORPORATION deem it advisable and in the best interests of the corporations respective shareholders that __________________ CORPORATION be acquired by __________________ CORPORATION through a merger (Merger”) of __________________ CORPORATION and __________________ CORPORATION, who shall acquire all of the business, assets and goodwill, subject to the liabilities, of __________________ CORPORATION and that shares of __________________ CORPORATION Common Stock shall be converted to shares of __________________ CORPORATION Common Stock on the terms and conditions hereinafter set forth;
 
NOW, THEREFORE, in consideration of the mutual warranties and covenants set forth herein, the parties hereto agree as follows:
 
1. Merger of __________________ CORPORATION into __________________ CORPORATION. 
 
1.1 Merger of __________________ CORPORATION with and into __________________ CORPORATION. __________________ CORPORATION and __________________ CORPORATION hereby adopt the plan of reorganization encompassed by this Agreement and hereby agree that __________________ CORPORATION shall merge with and into __________________ CORPORATION on the terms and conditions set forth herein. __________________ CORPORATION will, upon the filing of the Certificate of Merger contemplated by _________________________________ [citation of applicable state statutes] (the Effective Date”), merge with and into __________________ CORPORATION, and thereafter the separate existence of __________________ CORPORATION will cease. As of the Effective Date, __________________ CORPORATION shall succeed to all of the rights, privileges, powers and property, including, without limitation, all rights, privileges, franchises, patents, trademarks, licenses, registrations, bank accounts, contracts, patents, copyrights and other assets of every kind and description of __________________ CORPORATION, and __________________ CORPORATION shall assume all of the obligations and liabilities of __________________ CORPORATION, excepting and excluding, (i) the minute books and stock records of __________________ CORPORATION insofar as they relate solely to its organization and capitalization, and (ii) the rights of __________________ CORPORATION arising out of this Agreement. The Merger will occur in accordance with the General Corporation Law of the State of __________________.
 
1.2 Pending and Subsequent Actions. __________________ CORPORATION will cooperate, and will cause its officers, directors and other employees to cooperate, with __________________ CORPORATION on and after the Effective Date (i) in effecting the collection of all receivables and other items owing to __________________ CORPORATION and (ii) in prosecuting claims and furnishing information, testimony and other assistance in connection with all actions, proceedings, arrangements or disputes based upon contracts, arrangements or acts of __________________ CORPORATION which were in effect or which occurred on or prior to the Merger.
2. Delivery of __________________ CORPORATION Common Stock and Assumption of Liabilities by __________________ CORPORATION. 
 
2.1 Conversion of Stock. Effective as of the Effective Date, each stock certificate representing shares of __________________ CORPORATION Common Stock, along with any and all accrued and unpaid dividend rights with respect thereto, shall be deemed to represent the respective numbers of shares of __________________ CORPORATION Common Stock, and each right to purchase shares of __________________ CORPORATION Common Stock (including employee stock options) shall be deemed to represent a right to purchase the respective number of shares of __________________ CORPORATION Common Stock, in each case as is determined by the formula set forth in Section 2.2.
 
2.2 Issuance and Delivery of __________________ CORPORATION Common Stock. Upon surrender of certificates representing __________________ CORPORATION Common Stock, __________________ CORPORATION will issue and deliver as provided in Section 2.3 certificates representing a number of whole shares of its Common Stock determined by the following exchange rate: ________  share(s) of __________________ CORPORATION Common Stock shall be issued in exchange for each ________  share(s) of __________________ CORPORATION Common Stock issued and outstanding on the Effective Date. Fractional shares of __________________ CORPORATION Common Stock shall not be issued, but their cash value, as determined in good faith by the board of directors of __________________ Corporation, shall be paid for the fractional shares.
 
2.3 Surrender and Conversion of __________________ CORPORATION Share Certificates. All persons holding shares of __________________ CORPORATION Common Stock shall surrender the certificates representing the shares of __________________ CORPORATION Common Stock, either by certified mail, return receipt requested, or in person to: ________ , or such other location as __________________ CORPORATION shall advise such holders in writing. Upon receipt of the surrendered share certificate of __________________ CORPORATION Common Stock, a replacement certificate reflecting shares of __________________ CORPORATION Common Stock subject to the exchange rate set forth in Paragraph 2.2 hereof shall be issued and caused to be delivered in accordance with this Agreement. Notwithstanding proposed exchanges of certificates, each certificate representing shares of __________________ CORPORATION Common Stock not physically surrendered pursuant to this section shall be deemed to represent shares of __________________ CORPORATION Common Stock and subject to the exchange rate set forth in Paragraphs 2.2 and 2.3 hereof.
 
2.4 Employee Plans. 
 
2.4.1 Stock Option Plans. __________________ Corporation shall assume each option to purchase shares of __________________ CORPORATIONS Common Stock (“__________________ Options”) outstanding at the Effective Date and each __________________ Option shall thereafter be exercisable for a number of shares of __________________ CORPORATION Common Stock equal to the number of shares of __________________ CORPORATION Common Stock subject to such option immediately prior to the Effective Date multiplied by ________ . The exercise price per share of __________________ Common Stock for such __________________ Option so assumed shall be the exercise price per share specified in such __________________ Option divided by ________ . Each of the assumed __________________ Options shall continue upon the same terms and conditions as were applicable prior the assumption, except for the adjustments contemplated immediately above.
 
2.4.2 Employment Agreements. As of the Effective Date, __________________ CORPORATION will adopt as employer mutatis mutandis all employment agreements and employment, salary and fringe benefit arrangements and obligations of __________________ CORPORATION.
 
2.4.3 Other Agreements. As of the Effective Date, __________________ CORPORATION will assume mutatis mutandis any and all agreements of __________________ CORPORATION, and agrees to be bound by the terms and conditions of each such agreement.
 
3. Dissenters Rights. Notwithstanding anything in this Agreement to the contrary, shares of __________________ CORPORATIONs Common Stock that are issued and outstanding immediately prior to the Effective Date and that are held by stockholders who have not voted such shares in favor of the Merger and who have delivered a written demand for appraisal of such shares in the manner provided in __________________________________ [citation of applicable state statutes] (Dissenting Shares”) shall have no right to receive any cash payment based upon the applicable exchange rate unless and until such holder shall have failed to perfect, or shall have effectively withdrawn or lost, such holders right to appraisal and payment under ____________ [state] Law. if such holder shall have so failed to perfect, or shall have effectively withdrawn or lost such right, such holders shares of __________________ CORPORATIONs Common Stock shall thereupon be deemed to have been cancelled and converted as described in paragraph ________  at the Effective Date, and each such share shall represent the right to receive the appropriate cash payment based upon the applicable exchange rate. __________________ CORPORATION shall give __________________ CORPORATION prompt notice of any demands received by __________________ CORPORATION for appraisal of its shares.
 
4. Representations and Warranties of __________________ CORPORATION.  __________________ CORPORATION represents and warrants to __________________ CORPORATION as follows:
 
4.1 Corporate Organization. __________________ CORPORATION is a corporation duly organized, validly existing and in good standing under the laws of the State of ________ , and is duly qualified to do business as a foreign corporation in each other jurisdiction in which the failure to so qualify would have a material adverse effect on its business as presently conducted and as proposed to be conducted.
 
4.2 Validity of Transaction. __________________ CORPORATION has full right, power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by __________________ CORPORATION and constitutes the valid and legally binding obligation of __________________ CORPORATION.
 
4.3 Capitalization. Immediately prior to the Effective Date, the authorized capital stock of __________________ CORPORATION shall consist solely of ________  shares of Common Stock, of which ________  shares will be issued and outstanding and ________  shares will be reserved for issuance to employees, directors and consultants, upon exercise of stock options. Except for the shares reserved for issuance as described above, __________________ CORPORATION has no agreement or understanding to issue any capital stock.
 
4.4 Litigation. __________________ CORPORATION is not a party to any litigation or any governmental proceeding and, to the best of its knowledge, there is no valid basis for any such litigation or proceeding. There is no judgment or order of any court or governmental authority in effect against __________________ CORPORATION.
 
5. Representations and Warranties of __________________ CORPORATION. __________________ CORPORATION represents and warrants to __________________ CORPORATION as follows:
 
5.1 Corporate Organization. __________________ CORPORATION is a corporation duly organized, validly existing and in good standing under the laws of the State of __________________, and is duly qualified to do business as a foreign corporation in each other jurisdiction in which the failure to so qualify would have a material adverse effect on its business as presently conducted and as proposed to be conducted.
 
5.2 Validity of Transaction. __________________ CORPORATION has full right, power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by __________________ CORPORATION and constitutes the valid and legally binding obligation of __________________ CORPORATION.
 
5.3 Capitalization. Immediately prior to the Effective Date, the authorized capital stock of __________________ CORPORATION shall consist solely of ________  shares of Common Stock, $________  par value.
 
5.4 Litigation. __________________ CORPORATION is not a party to any litigation or any governmental proceeding and, to the best of its knowledge, there is no valid basis for any such litigation or proceeding. There is no judgment or order of any court or governmental authority in effect against __________________ CORPORATION.
 
6. Conditions Precedent to __________________ Corporations Obligations to Close. __________________ CORPORATIONs obligation to consummate the Merger is subject to the satisfaction, on or before the Closing Date, of the following conditions:
 
(a) Performance of Acts and Undertakings of __________________ Corporation. Each of the acts and undertakings of __________________ CORPORATION to be performed on or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed.
 
(b) Certified Resolutions. __________________ CORPORATION shall have furnished __________________ CORPORATION with a copy, certified by __________________ CORPORATIONs secretary, of (1) a resolution or resolutions duly adopted by __________________ CORPORATIONs board of directors authorizing and approving this Agreement and directing that it be submitted to a vote of __________________ CORPORATIONs shareholders, and (2) a resolution or resolutions adopting this Plan and Agreement of Merger, duly approved by the holders of at least a majority of the total number of outstanding shares of common stock of __________________ CORPORATION.
 
(c) Continued Accuracy of __________________ Corporations Representations and Warranties. All of the representations and warranties of __________________ CORPORATION contained in this Agreement and in the Schedules furnished pursuant to paragraph 8 shall be true in every respect on and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of that date; and __________________ CORPORATION shall have received at the closing a certificate, dated the Closing Date and executed by the president or a vice president of __________________ CORPORATION, containing a representation and warranty to that effect.
(d) Opinion of __________________ Corporations Counsel Required. __________________ CORPORATION shall have furnished __________________ CORPORATION with a favorable opinion of ________ , counsel for __________________ CORPORATION, dated the Closing Date, substantially in the form attached hereto as Appendix ________ . In addition to matters specified in the form, the opinion shall include such other matters incident to the contemplated transactions as are reasonably requested by __________________ CORPORATION or its counsel.
 
(e) Opinion to __________________ Corporation of __________________ Corporations Counsel. __________________ CORPORATION shall have received the opinion of its counsel to the effect that the transactions contemplated by this Agreement will not violate any federal statute or any court decree or order, and that all legal matters relating to the consummation of the transactions contemplated by this Agreement have been or will be completed to the satisfaction of __________________ CORPORATIONs counsel in all material respects.
 
(f) Approvals From Authorities. __________________ CORPORATION shall have received, or shall have satisfied itself that it will receive, in form satisfactory to __________________ CORPORATION, all necessary approvals of the transactions contemplated by this Agreement from authorities having any jurisdiction over the business of __________________ CORPORATION of any __________________ CORPORATION Subsidiary, so that __________________ CORPORATION and __________________ CORPORATION Subsidiaries may continue to carry on their business as presently conducted after consummation of the Merger; and no such approval shall have been withdrawn or suspended.
 
(g) Consents. All consents of other parties to the mortgages, notes, leases, franchises, agreements, licenses, and permits of __________________ CORPORATION or any __________________ CORPORATION Subsidiary necessary to permit consummation of the Merger shall have been obtained.
 
(h) Adoption of Merger by Shareholders. At least a majority of the outstanding shares of __________________ CORPORATION Common Stock shall have been voted for the adoption of the Merger and Plan of Reorganization set forth in this Agreement.
 
(i) Dissenting Shares. Not more than ________  percent of the outstanding shares of __________________ CORPORATION Common Stock shall be “dissenting shares” within the definition of __________________________________ [citation of applicable state statutes].
 
(j) Employment Agreements. Those executives of __________________ CORPORATION and __________________ CORPORATION Subsidiaries designated by __________________ CORPORATION shall have entered into employment agreements on terms satisfactory to such executives or employees and their respective counsel and to __________________ CORPORATION and its counsel.
(k) Filing of Merger Agreement. The Plan and Agreement of Merger shall have been filed in the office of the Secretary of State or other office or each jurisdiction in which such filings are required in order for the Merger to become effective, or __________________ CORPORATION shall have satisfied itself that all such filings will be or are capable of being made effective as of the Closing Date.
 
(l) __________________ Corporations Delivery of Updated Schedules. __________________ CORPORATION shall have delivered the Schedules, updated through the Closing Date.
 
(m) __________________ Corporations Approval of Updated Schedules. In its sole and absolute discretion, __________________ CORPORATION shall be satisfied with any matter reflected, listed, or disclosed in the updated Schedules which was not reflected, listed, or disclosed in the original Schedules.
 
7. Condition Precedent to __________________ Corporations Obligation to Close. __________________ CORPORATIONs obligation to consummate the Merger is subject to the satisfaction on or prior to the Closing Date of the following conditions:
 
(a) Performance of Acts and Undertakings by __________________ Corporation. Each of __________________ CORPORATIONs acts and undertakings to be performed on or before the Closing Date pursuant to this Agreement shall have been performed.
 
(b) Certified Resolutions. __________________ CORPORATION shall have furnished __________________ CORPORATION with certified copies of (1) resolutions duly adopted by the board of directors of __________________ CORPORATION and the board of directors of __________________ CORPORATION Subsidiary authorizing and approving the execution and delivery of this Plan and Agreement of Merger and authorizing the consummation of the transactions contemplated by this Agreement, and (2) resolutions duly adopted by __________________ CORPORATION as sole shareholder of __________________ CORPORATION Subsidiary, adopting the plan of merger set forth in this Agreement.
 
(c) Continued Accuracy of __________________ Corporations Representations and Warranties. The representations and warranties of __________________ CORPORATION contained in this Agreement shall be true on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of that date; and __________________ CORPORATION shall have received at the closing a certificate, dated the Closing Date and executed on behalf of __________________ CORPORATION by its president or any vice president, containing a representation and warranty to that effect.
 
(d) Shareholder Vote. At least a majority of the outstanding shares of common stock of __________________ CORPORATION shall have been voted for the adoption of the Merger and Plan of Reorganization contemplated by this Agreement.
 
(e) Opinion of __________________ Corporations Counsel Required. __________________ CORPORATION shall have furnished __________________ CORPORATION with a favorable opinion of ________ , counsel for __________________ CORPORATION, which opinion shall be dated the Closing Date and shall include the following: ________ , and such other matters incident to the contemplated transactions as reasonably requested by __________________ CORPORATION or __________________ CORPORATIONs counsel.
8. Schedules. As soon as practicable, but in no event later than ________  days after the date of this Agreement, __________________ CORPORATION shall deliver to __________________ CORPORATION Schedules in the form attached to this Agreement as Appendix ________ . Each such Schedule shall have been executed by or on behalf of __________________ CORPORATION and shall be accompanied by a copy of each document referred to in the Schedule. Pursuant to paragraph 6(k), all Schedules shall be updated through the Closing Date; however, the updating of the Schedules shall not relieve __________________ CORPORATION of its responsibility to indemnify __________________ CORPORATION, as provided in paragraph 11, with respect to any information not disclosed in the original Schedules. Each matter disclosed in a Schedule shall be taken as relating only to that specific Schedule.
 
9. Investigation by __________________ Corporation. Prior to the Closing Date, __________________ CORPORATION may directly or through its representatives make such investigation of the assets and business of __________________ CORPORATION and its Subsidiaries (including, without limitation, confirmation of its cash, inventories, accounts, accounts receivable and liabilities, and investigation of its titles to and the condition of its property and equipment) as __________________ CORPORATION deems necessary or advisable. The investigation shall not affect (1) __________________ CORPORATIONs representations and warranties contained or provided for in this Agreement, (2) __________________ CORPORATIONs right to rely on those representations and warranties, or (3) __________________ CORPORATIONs right to terminate this Agreement as provided in this paragraph 9 and in paragraph 13. __________________ CORPORATION shall allow __________________ CORPORATION and its representatives full access, at reasonable times after the date of execution of this Agreement, to the premises and to all the books, records, and assets of __________________ CORPORATION and its Subsidiaries, and __________________ CORPORATIONs officers shall furnish to __________________ CORPORATION such financial and operating data and other information with respect to the business and properties of __________________ CORPORATION and each __________________ CORPORATION Subsidiary as __________________ CORPORATION shall from time to time reasonably request. __________________ CORPORATION agrees not to disclose any confidential information obtained in the course of its investigation or use it for any purposes other than evaluation of __________________ CORPORATION and its Subsidiaries with respect to the contemplated merger.
 
As soon as practicable, and in any event within __ [number] days after the receipt of (1) the last Schedule required to be delivered to __________________ CORPORATION by __________________ CORPORATION pursuant to paragraph ________  and (2) any supporting documentation requested by __________________ CORPORATION, __________________ CORPORATION shall give __________________ CORPORATION notice if __________________ CORPORATION has decided that it wishes to terminate this Agreement based on any information contained in any of the Schedules or obtained during the course of its investigation. The notice shall specify the information contained in the Schedules or obtained during the investigation on which __________________ CORPORATIONs decision to terminate is based. __________________ CORPORATION shall have 10 days after receipt of the notice to review that information with __________________ CORPORATION. If __________________ CORPORATION does not withdraw its notice within this 10-day period, then all further obligations of __________________ CORPORATION and of __________________ CORPORATION under this Agreement shall terminate without further liability of __________________ CORPORATION to __________________ CORPORATION or of __________________ CORPORATION to __________________ CORPORATION, except their respective obligations to return documents as provided in paragraph 16. If __________________ CORPORATION does not advise __________________ CORPORATION within the __ [number] day period specified in the first sentence above that it wishes to terminate this Agreement, __________________ CORPORATION shall be deemed to be satisfied with the information relating to __________________ CORPORATION and its Subsidiaries contained in the Schedules and/or obtained during the course of its investigation, subject to __________________ CORPORATIONs rights concerning the continued accuracy of __________________ CORPORATIONs warranties and representations set forth in paragraph 4.
 
10. Survival of Representations, Warranties, and Indemnities. The representations, warranties, and indemnities included or provided for in this Agreement or in any Schedule or certificate or other document delivered pursuant to this Agreement shall survive the Closing Date for a period of __ [number] years. No claim may be made under this paragraph unless written notice of the claim is given within that __-year [number] period.
 
11. Indemnification. Notwithstanding __________________ CORPORATIONs investigations of __________________ CORPORATION and its Subsidiaries before the Closing Date, and notwithstanding the fact that __________________ CORPORATION may be deemed satisfied as to certain matters investigated by __________________ CORPORATION, all as provided in paragraph 9, __________________ CORPORATION shall indemnify, defend, and hold __________________ CORPORATION and each of its subsidiaries harmless, to the maximum extent of (but limited to) the Escrow Fund provided for in this paragraph, from and against any and all losses, liabilities, costs, expenses, judgments, assessments, penalties, damages, deficiencies, suits, actions, claims, proceedings, demands, and causes of action, including but not limited to reasonable attorney fees, court costs, and related expenses, that were caused by, arose as a result of, or arose with respect to any of the following:
 
(a) Any inaccuracy in any representation or warranty or any breach of any warranty of __________________ CORPORATION under this Agreement or any Schedule, certificate, instrument, or other document delivered pursuant to this Agreement;
 
(b) Any failure of __________________ CORPORATION duly to perform or observe any term, provision, covenant, or agreement to be performed or observed by __________________ CORPORATION pursuant to this Agreement, and any Schedule, certificate, agreement, or other document entered into or delivered pursuant to this Agreement; or
(c) Any inaccuracy whatsoever in the Balance Sheet, whether such losses were known or unknown to __________________ CORPORATION or its Subsidiaries; provided, however, that __________________ CORPORATION and its subsidiaries shall not be indemnified and held harmless unless and until such damages, losses, and expenses exceed $________ , in which event, __________________ CORPORATION and its subsidiaries shall be indemnified and held harmless in full. All claims under this provision for indemnity shall be made within the time period and in the manner provided for in paragraph 11 and the Escrow Agreement attached hereto as Appendix ________ .
 
12. Establishment of Escrow. Upon closing, the parties shall forthwith enter into an escrow to carry out the terms of this Agreement, and an Escrow Fund shall be created consisting of the amount specified in paragraph 11. ________  shall act as Escrow Holder.
 
Escrow Holder shall hold and dispose of the Escrow Fund in accordance with the Escrow Agreement attached hereto as Appendix ________ . The parties to this Agreement understand and agree to the terms of the Escrow Agreement set forth as Appendix ________ , which when duly executed shall be incorporated as part of this Agreement.
 
The Escrow Fund shall remain in existence for ________  years after the Closing Date plus any extensions required by the terms of the Escrow Agreement (the Escrow Period”).
 
13. Further Assurances. __________________ CORPORATION and __________________ CORPORATION each agrees that from time to time, as and when requested by the other, it will execute, acknowledge, deliver and file all proper deeds, assurances, assignments, bills of sale, assumptions and other documents, and do, or cause to be done, all other acts and things necessary or proper in order to vest, perfect, assure or confirm in __________________ CORPORATION title to and possession of all the property, rights, privileges, powers, franchises, bank accounts, contracts, patents, copyrights, and stated liabilities of __________________ CORPORATION, or otherwise necessary or proper to carry out the intent and purposes of this Agreement.
 
14. Termination of this Agreement. In addition to the termination rights provided for in paragraph 9, this Agreement and the transactions contemplated under this Agreement may be terminated at any time prior to the Closing Date, either before or after the meeting of __________________ CORPORATIONs shareholders:
 
(a) By mutual consent of __________________ CORPORATION and __________________ CORPORATION;
 
(b) By __________________ CORPORATION if there has been a material misrepresentation or a material breach of warranty in __________________ CORPORATIONs representations and warranties set forth in this Agreement or in any Schedule or certificate delivered pursuant to this Agreement;
 
(c) By __________________ CORPORATION if there has been a material misrepresentation or a material breach of warranty in __________________ CORPORATIONS representations and warranties set forth in this Agreement;
 
(d) By __________________ CORPORATION or __________________ CORPORATION if either party shall have determined in its sole discretion that the transactions contemplated by this Agreement have become inadvisable or impracticable by reason of the institution or threat of institution, by governmental authorities (local, state, or federal) or by any other person, of material litigation or proceedings against either or both of the parties, it being understood and agreed that a written request by governmental authorities for information with respect to the proposed transactions, which information could be used in connection with such litigation or proceedings, may be deemed by __________________ CORPORATION or __________________ CORPORATION to be a threat of material litigation or proceedings, whether such request is received before or after the date of this Agreement;
 
(e) By __________________ CORPORATION if it has determined that the business, assets, or financial condition of __________________ CORPORATION and __________________ CORPORATION Subsidiaries, taken as a whole, have been materially and adversely affected, whether by reason of changes, developments, or operations in the ordinary course of business or otherwise;
 
(f) By __________________ CORPORATION or by __________________ CORPORATION if the Effective Date referred to in paragraph 1.1 has not occurred by ________ [date] ________ ; and
 
(g) By __________________ CORPORATION if it has determined that the business, assets or financial conditions of __________________ CORPORATION and its subsidiaries, taken as a whole, have been adversely affected, whether by reason of changes, developments, or operations in the ordinary course of business or otherwise.
 
15. Right to Proceed. In the event that this Agreement is terminated pursuant to this paragraph 15 or paragraph 9, or because of the failure to satisfy any of the conditions specified in paragraph 6 or paragraph 7, all further obligations of __________________ CORPORATION and of __________________ CORPORATION under this Agreement shall terminate without further liability of __________________ CORPORATION to __________________ CORPORATION or __________________ CORPORATION to __________________ CORPORATION, except for the obligations of both parties under paragraph 14 and of __________________ CORPORATION under paragraph 16; provided, however, anything in this Agreement to the contrary notwithstanding, that if __________________ CORPORATION fails to furnish any of the Schedules referred to in paragraph ________  or fails to satisfy any of the conditions specified in paragraph ________ , __________________ CORPORATION shall nonetheless have the right in its discretion, to proceed with the transactions contemplated by this Agreement, and if __________________ CORPORATION fails to satisfy any of the conditions specified in paragraph 6, __________________ CORPORATION shall nonetheless have the right, in its discretion, to proceed with the transactions contemplated by this Agreement.
16. Return of Documents in Event of Termination. In the event of the termination of this Agreement for any reason, __________________ CORPORATION will return to __________________ CORPORATION all documents, work papers, and other materials (including copies) relating to the transactions contemplated by this Agreement, whether obtained before or after execution of this Agreement. __________________ CORPORATION will not use any information so obtained for any purpose, and will take all practicable steps to have such information kept confidential.
 
17. Miscellaneous. 
 
(a) Amendments. At any time before or after approval and adoption by the shareholders of __________________ CORPORATION, this Agreement may be amended in any manner (except that the provisions of paragraph 2 may not be amended without the approval of the shareholders of __________________ CORPORATION) as may be determined in the judgment of the respective Boards of Directors of __________________ CORPORATION and __________________ CORPORATION to be necessary, desirable or expedient in order to clarify the intention of the parties hereto or to effect or facilitate the purposes and intentions of this Agreement.
 
(b) Attorney Fees and Costs in Event of Termination. In the event of the termination of this Agreement for any reason, each party shall bear its own costs and expenses, including attorney fees.
 
(c) Public Announcement. Neither __________________ CORPORATION nor __________________ CORPORATION, without the consent of the other, shall make any public announcement or issue any press release with respect to this Agreement or the transactions contemplated by it, which consent shall not be unreasonably withheld.
 
(d) Meeting of __________________ Corporations Shareholders. __________________ CORPORATION shall take all necessary steps to call a meeting of its shareholders to be held within ________  days from the date of this Agreement, which number of days includes adequate time for the preparation and mailing of proxy statements if applicable. In all proxy statements or other communications with the shareholders on this subject, __________________ CORPORATIONs board of directors shall recommend to the shareholders that they adopt the plan of merger and approve the terms of this Agreement.
 
(e) Covenant to Operate in the Ordinary Course. Between the date of this Agreement and the Closing Date, __________________ CORPORATION shall operate its business only in the ordinary course and in a normal manner consistent with past practice. During this period, __________________ CORPORATION shall not encumber any asset or enter into any transaction or make any commitment relating to its assets or business otherwise than in the ordinary course of its business (consistent with its prior practices), or take any action that would render inaccurate any representation or warranty contained in this Agreement or would cause a breach of any other covenant under this Agreement, without first obtaining the written consent of __________________ CORPORATION.
(f) Governing Law; Successors and Assigns; Counterparts; Entire Agreement. This Agreement (a) shall be construed under and in accordance with the laws of the state of __________________; (b) shall be binding on and shall inure to the benefit of the parties to the Agreement and their respective successors and assigns; (c) may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts shall have been signed by each of the parties and delivered to __________________ CORPORATION and __________________ CORPORATION; and (d) embodies the entire agreement and understanding, superseding all prior agreements and understandings between __________________ CORPORATION and __________________ CORPORATION relating to the subject matter of this Agreement.
 
(g) Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the ________  day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
 
 
To __________________ CORPORATION and its Subsidiaries at: ________ [Address] 
 
To __________________ CORPORATION and its Subsidiary at: ________ [Address] 
 
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
 
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereto affixed effective as of the date first written above.
 
__________________ CORPORATION
a _______________  corporation
By: _______________  
 
_______________ , President
ATTEST:
 _______________
_______________ , Secretary
 
__________________ CORPORATION
a ___________ [state] corporation
By: _______________  
 
_______________ , President
ATTEST:
 _______________
_______________ , Secretary
 

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