Amalgamation Agreement

AMALGAMATION AGREEMENT

This Amalgamation Agreement (the Agreement) is made as of by and between Amalgamating Entity: , a corporation organized under the laws of , and Resulting Entity: , a corporation organized under the laws of (each a Party and collectively the Parties).

RECITALS

WHEREAS, Amalgamating Entity is engaged in the business described in Schedule A and wishes to amalgamate with Resulting Entity in accordance with the terms and conditions set forth herein; and

WHEREAS, Resulting Entity is willing to accept the amalgamation and to continue the business of the Amalgamating Entity upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, the Parties intend that the amalgamation shall take effect on the Effective Date and that the resulting corporation shall succeed to all assets, rights and liabilities of the Amalgamating Entity as provided by applicable law and by this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:

1. DEFINITIONS

In this Agreement, unless the context otherwise requires, the following terms have the following meanings:

"Effective Date" means the date set forth in the first paragraph of this Agreement or such later date as the Parties may agree in writing.

"Consideration" means the securities, cash or other property to be issued or paid pursuant to Section 3.

2. EFFECT OF AMALGAMATION

2.1 Upon the Effective Date and subject to the satisfaction or waiver of the conditions set forth in this Agreement, Amalgamating Entity shall be amalgamated with Resulting Entity in accordance with applicable law, and Resulting Entity (or the continuing corporation designated by the Parties) shall be the surviving corporation (the Surviving Corporation). The Surviving Corporation shall thereupon succeed to and be vested with all the assets, rights, privileges, immunities, powers and franchises of Amalgamating Entity and shall be subject to all of the debts, liabilities and duties of Amalgamating Entity.

2.2 The Surviving Corporation shall have all the rights, powers and privileges and shall be subject to all the restrictions and disabilities applicable to Resulting Entity under its certificate of incorporation and bylaws as the same may be amended.

3. CONSIDERATION; SHARE EXCHANGE

3.1 At the Effective Date and subject to the terms of this Agreement, holders of the outstanding issued and outstanding shares of Amalgamating Entity shall be entitled to receive, in exchange for each share surrendered, the consideration described below.

3.2 Consideration. The consideration to be delivered by Resulting Entity to the shareholders of Amalgamating Entity shall be: . If consideration includes shares of the Surviving Corporation, the exchange ratio shall be .

3.3 Fractional Shares and Cash. No fractional shares shall be issued. Fractional interests shall be rounded as follows:

4. GOVERNANCE, DIRECTORS AND OFFICERS

4.1 Board Composition. As of the Effective Date, the board of directors of the Surviving Corporation shall consist of the persons listed on Schedule B. The initial officers shall be the persons listed on Schedule C, until successors are duly appointed.

4.2 Election and Term. Directors and officers shall hold office in accordance with the Surviving Corporation's organizational documents and applicable law.

5. EMPLOYEES AND BENEFITS

5.1 Employees. The Surviving Corporation shall offer continued employment to employees of Amalgamating Entity in accordance with its customary practices and applicable law; provided that nothing in this Agreement shall be construed to guarantee employment for any specified period.

5.2 Employee Benefits. The Surviving Corporation shall assume or provide substantially equivalent benefit plans for employees whose employment is continued, subject to plan terms and applicable law.

6. REPRESENTATIONS AND WARRANTIES

6.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other, as of the date of this Agreement and as of the Effective Date, that:

(a) Corporate Existence and Power. It is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has full corporate power and authority to enter into and perform this Agreement.

(b) Authorization. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action, and this Agreement constitutes a valid and binding obligation enforceable against such Party in accordance with its terms, subject to bankruptcy, insolvency and similar laws of general application.

(c) No Conflict. The execution and performance of this Agreement do not and will not (i) violate any provision of the Party's organizational documents, (ii) violate any material agreement or instrument binding on such Party, or (iii) violate any order, judgment or decree of any court or governmental authority.

7. COVENANTS

7.1 Conduct of Business. From the date hereof until the Effective Date, each Party shall conduct its business in the ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact its business operations and relationships.

7.2 Regulatory Filings. Each Party shall prepare and file in a timely manner all notices, filings and other documents required by applicable law to effect the amalgamation and shall cooperate in good faith in obtaining all required governmental and third-party consents.

8. CONDITIONS PRECEDENT

8.1 Conditions to Each Party's Obligations. The obligations of each Party to effect the amalgamation are subject to the satisfaction or waiver of the following conditions:

(a) Corporate Approvals. The requisite approvals of the shareholders and boards of directors of each Party have been obtained.

(b) No Injunctions. No statute, rule, regulation, order or decree shall prohibit consummation of the amalgamation.

9. CLOSING DELIVERIES

At or prior to the Effective Date, each Party shall deliver to the other the certificates, instruments and other documents set forth on Schedule D, including certified copies of shareholder and board approvals, officers' certificates as to authority and compliance, and updated capitalization statements.

10. TAX MATTERS

10.1 Tax Filings. The Parties shall cooperate in good faith to prepare and file all tax returns and reports required in connection with the amalgamation and to take such actions as are reasonably necessary to carry out the tax treatment contemplated by the Parties.

10.2 Allocation. Any allocation of consideration or tax attributes between the Parties shall be determined in accordance with Schedule E and shall be binding on the Parties for purposes of this Agreement.

11. INDEMNIFICATION

11.1 Survival. The representations, warranties and covenants of the Parties shall survive the Effective Date for a period of months, except that claims for fraud may be asserted at any time permitted by law.

11.2 Indemnification. Subject to the limitations herein, each Party shall indemnify, defend and hold harmless the other Party from and against any losses, liabilities, damages, costs and expenses arising out of any breach of such Party's representations, warranties or covenants.

12. LIMITATION OF LIABILITY

Except for willful misconduct or fraud, neither Party shall be liable for consequential, special, punitive or exemplary damages arising out of or related to this Agreement, and the aggregate liability of each Party shall be limited to direct damages not to exceed .

13. NOTICES

All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be delivered to the Parties at their respective addresses set forth below, by personal delivery, certified mail (return receipt requested), or overnight courier service.

14. AMENDMENTS; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by each Party. The failure of any Party to insist upon strict performance of any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.

15. COUNTERPARTS

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures delivered by electronic transmission shall be treated as originals for all purposes.

16. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflicts of laws principles.

17. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with the Schedules and Exhibits hereto, constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and understandings, whether written or oral. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect and the invalid or unenforceable provision shall be reformed to the minimum extent necessary to make it valid and enforceable.

MISCELLANEOUS

The Parties shall execute and deliver such further instruments and take such further actions as may be necessary or desirable to effectuate the transactions contemplated by this Agreement.

The Parties acknowledge that schedules referred to herein form an integral part of this Agreement. Schedules A through E are attached and incorporated by reference and set forth disclosure schedules, capitalization details and other matters described herein.

Sign Now