VIEWS: 508 PAGES: 7 CATEGORY: Mergers and Acquisitions POSTED ON: 1/22/2011
This template Merger Agreement sets forth a merger between two companies, the Target and Acquirer. As drafted, the Acquirer will be the surviving corporation and the consideration will be cash. This short-form agreement is intended to supply standard terms and provisions, such as restrictions on the business conduct of Target prior to closing and a confidentiality provision. This document can be modified to fit the needs of the drafting parties, who may choose to customize these generic clauses or add additional provisions.
This template Merger Agreement sets forth a merger between two companies, the Target and Acquirer. As drafted, the Acquirer will be the surviving corporation and the consideration will be cash. This short-form agreement is intended to supply standard terms and provisions, such as restrictions on the business conduct of Target prior to closing and a confidentiality provision. This document can be modified to fit the needs of the drafting parties, who may choose to customize these generic clauses or add additional provisions. MERGER AGREEMENT This Merger Agreement (herein referred to as the “Agreement”) is made and entered into this ___ day of ___________, 20___, by and between ___________________________ (herein referred to as the “Target”) whose offices are located at _____________________________ and ___________________________________ (herein referred to as the “Acquirer”) whose offices are located at _______________________________, hereinafter collectively referred to as the “Parties”. WHEREAS, the Boards of Directors of Target and Acquirer have determined that it is in the best interests of their respective companies and their stockholders to consummate the strategic business combination transaction provided for in this Agreement in which Target will, on the terms and subject to the conditions set forth in this Agreement, merge with and into, Acquirer as the surviving company in the Merger (sometimes referred to in such capacity as the “Surviving Corporation”); WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to the Merger. NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows: I. FORM OF MERGER 1.1 Subject to the terms and conditions contained in this Agreement, Target will be merged with and into the Acquirer (hereinafter referred to as the “Merger”). The Parties agree that the Merger shall take the form of amalgamation. Acquirer will be the Surviving Corporation of the Merger, and Target shall be dissolved after the Merger. 1.2 The Merger will be effective as of the date and at such time as this Agreement and any other documents necessary to effect the Merger in accordance are duly filed with the Secretary of State of the State of ______________________, hereinafter referred to as (the “Effective Time”). 1.3 Upon the Merger, the total amount of consideration to be paid by Acquirer to Target shall be US$____________________. The registered capital of the new company shall be US$____________________. [Instruction: Parties shall determine whether an independent transfer agent should be used in order to hold the consideration and successfully complete the transfer to Target upon the Closing] II. CLOSING © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 2.1 It is anticipated that the consummation of the transactions contemplated herein will occur on or before _____________________, or such other date as the Parties may agree. III. RIGHTS AND LIABILITIES 3.1 Upon the Effective Time, the rights and liabilities of Target shall be enjoyed and assumed by the Surviving Corporation. [Instruction: The Parties may consider a due diligence period during which time the Acquirer may review the books and records, and any other documents related to the Target that may be required by Acquirer] IV. RELATED CONTRACTS 4.1 Upon the Effective Time, the Surviving Corporation shall become a party to the contracts entered into by Target in accordance with law. 4.2 The Certificate of Incorporation of Acquirer shall become the Certificate of Incorporation of the Surviving Corporation and the Bylaws of Acquirer shall become the Bylaws of the Surviving Corporation. V. STAFF AND WORKERS 5.1 Upon the Effective Time, the directors, officers and other staff of Acquirer shall be and become the directors and officers (holding the same titles and positions) of the Surviving Corporation, and shall serve in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation. VI. CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME 6.1 Except as expressly contemplated by or permitted by this Agreement or with the prior written consent of the other party, during the period from the date of this Agreement to the Effective Time, each of the Parties shall, and shall (a) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships; (b) take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of the Parties to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or to consummate the transactions contemplated hereby or thereby; and (c) take no action that will injure or diminish the value of the business organization, including but not limited to assuming new debt and obligations, without notice to Acquirer. VII. CONFIDENTIALITY 7.1 “Confidential Information” means all materials or information disclosed by either Strategic Partner or Company (the “Disclosing Party”) to the other (the “Recipient”). © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 Confidential Information does not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient, the Recipient's employees, or any other person who receives the information from the Recipient or the Recipient's employees; or as a result of a disclosure by a third party who is known by the Recipient as having violated a confidentiality obligation to the Disclosing Party; (ii) is or becomes available to Recipient on a non-confidential basis from a source that is entitled to disclose it to Recipient; or (iii) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Disclosing Party. 7.2 Prior to the consummation of the Merger, neither Party shall disclose Confidential Information of the other, except on a confidential basis, to its respective employees, accountants, attorneys and other professional advisors or as otherwise expressly provided herein, without the prior written consent of the other. If at any time either Party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas or similar legal process) to disclose any Confidential Information of the other, it (to the extent reasonably practical) shall promptly notify the other party so that the other party may seek an appropriate protective order and/or waive compliance with the provisions hereof. If, in the absence of a protective order or the receipt of a waiver hereunder, in the reasonable opinion of counsel for either party, such party is compelled to disclose Confidential Information of the other party to any tribunal or any governmental agency, it may disclose such information to such tribunal or agency without liability hereunder. VIII. MATTERS RELATING TO THE MERGER 8.1 Pursuant to this Agreement, the Acquirer shall be authorized to take over the assets of Target and in its sole discretion dispose of such assets upon the Effective Time. 8.2 The Acquirer shall be authorized to request Target to transfer all documents relating to its operating assets to the Acquirer. Such documents include but are not limited to all kinds of accounts, books and records and information on equipment and technology. IX. EMPLOYEE BENEFIT PLANS 9.1 As of the Effective Time, the obligations of Target under or with respect to every plan, trust, program and benefit then in effect or administered by Target for the benefit of its directors, officers and staff, shall become the lawful obligations of Acquirer and shall be implemented and administered in the same manner and without interruption until the same are amended or otherwise lawfully altered or terminated. Acquirer hereby expressly adopts and assumes all obligations of Target under such employee benefit plans. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 X. LIABILITY FOR BREACH 10.1 Any Party acting in violation of this Agreement shall constitute a breach of contract and such Party shall assume liability for breach and compensate the other Party for any losses incurred as a result of such breach. XI. ASSIGNMENT 11.1 Neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party hereto. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. XII. ABANDONMENT 12.1 At any time before the Closing, this Agreement may be terminated and the Merger abandoned by the Target or the Acquirer, notwithstanding approval of this Agreement by the holders of the outstanding Interests in Target and such Management Committee and such Board of Directors. [Instruction: This provision is optional, and/or may contain specific requirements for an abandonment to be effective] XIII. AMENDMENT 13.1 At any time before the effective of the Merger, this Agreement may be amended, modified or supplemented by the Parties. XIV. GOVERNING LAW 14.1 This Agreement will be governed by and interpreted in accordance with the laws of the State of ____________________, excluding that body of law known as conflicts of law. The Parties agree that any dispute arising under this Agreement will be resolved solely in the state or federal courts in ____________________, and the Parties hereby expressly consent to jurisdiction therein. In the event of any dispute, the prevailing party shall be entitled to recover its reasonable attorneys’ costs from the non-prevailing party. XV. ENTIRE AGREEMENT 15.1 This Agreement constitutes and contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. This Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized officers of both of the Parties hereto. XVI. COUNTERPARTS 16.1 This Agreement may be executed in any number of counterparts, each of which will be an original as regards any party whose signature appears thereon and all of which together will constitute one and the same instrument. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the date and year first above written. TARGET: Signature: _________________ Name: ____________________ Title: _____________________ ACQUIRER: Signature: _________________ Name: ____________________ Title: _____________________ © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6
Pages to are hidden for
"Merger Agreement"Please download to view full document