Legal Merger Litigation Document

LEGAL MERGER LITIGATION AGREEMENT

This Merger Litigation Agreement (the Agreement) is entered into as of by and between Plaintiff Name: with principal place of business at and Defendant Name: with principal place of business at .

RECITALS

WHEREAS, Plaintiff has commenced litigation styled as Case Number pending in (the Litigation) asserting claims arising from or relating to the proposed merger involving .

WHEREAS, the parties desire to settle and resolve all disputes, claims and causes of action arising out of or related to the Litigation and the proposed merger on the terms and conditions set forth in this Agreement.

WHEREAS, the parties wish to avoid further expense, uncertainty and delay attendant to continued litigation and to provide for dismissal, releases and other obligations to effectuate the settlement.

NOW, THEREFORE, in consideration of the covenants, promises and mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below:

a) "Claims" means all claims, demands, actions, causes of action, liabilities, obligations and damages, whether known or unknown, asserted or unasserted, arising out of, based upon, or related to the Litigation, the proposed merger, or events, facts or circumstances alleged or that could have been alleged in the Litigation.

b) "Effective Date" means the date on which the last required signature to this Agreement is affixed and any conditions precedent specified in Section 4 are satisfied or waived.

2. SETTLEMENT PAYMENT & CONDITIONS

2.1 Settlement Amount. Defendant agrees to pay to Plaintiff the total settlement amount of (Settlement Amount) in accordance with the schedule set forth below.

2.2 Payment Schedule. Defendant shall make payments to Plaintiff in the following manner:

2.3 Conditions Precedent. The obligations of the parties to perform under this Agreement are subject to the following conditions precedent:

3. DISMISSAL AND RELEASES

3.1 Dismissal. Promptly following the Effective Date, Plaintiff shall file with the court a stipulation of dismissal with prejudice of the Litigation as to all claims covered by this Agreement, provided that the settlement payments required by Section 2 have been timely made.

3.2 Mutual Releases. Upon the Effective Date and subject to payment in full of the Settlement Amount, each party, on behalf of itself and its past and present affiliates, subsidiaries, predecessors, successors, officers, directors, employees, agents and attorneys, hereby releases and forever discharges the other party from all Claims. Notwithstanding the foregoing, this release shall not apply to (a) obligations expressly set forth in this Agreement, or (b) claims based on subsequent acts or omissions that arise after the Effective Date.

4. COVENANT NOT TO SUE AND INJUNCTIVE RELIEF

4.1 Covenant Not to Sue. Each party covenants and agrees that it shall not initiate, assist, or participate in any proceeding asserting Claims released herein against the other party.

4.2 Injunctive Relief. The parties acknowledge that a breach of Section 3 or this Section 4 may cause irreparable harm for which monetary damages would be an inadequate remedy; accordingly, in addition to any other remedy available at law or in equity, a party shall be entitled to seek injunctive relief to enforce compliance with this Agreement.

5. CONFIDENTIALITY

5.1 Confidential Terms. The parties agree that the terms, amounts and existence of this Agreement shall be confidential and shall not be disclosed to any third party except as required by law, regulation, or court order, or as necessary to effectuate the terms of this Agreement (including disclosure to accountants, attorneys, and tax advisors who agree to be bound by confidentiality).

5.2 Exceptions. The confidentiality obligation shall not restrict disclosures to a party's counsel, insurers, auditors, or to governmental agencies when legally compelled to disclose.

6. REPRESENTATIONS AND WARRANTIES

Each party represents and warrants that: (a) it has full authority to enter into this Agreement; (b) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate or other action; and (c) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.

7. FEES, COSTS AND TAXES

7.1 Fees and Costs. Except as otherwise expressly provided herein, each party shall bear its own attorneys' fees, costs and expenses incurred in connection with the Litigation and the negotiation of this Agreement.

7.2 Taxes. Any tax consequences arising from the Settlement Amount shall be the responsibility of the recipient. Any party required to withhold taxes shall provide appropriate documentation to the other party.

8. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, by certified mail, return receipt requested, or by nationally recognized overnight courier to the addresses set forth below or to such other address as a party may designate by notice:

9. ENFORCEMENT

The parties agree that any dispute concerning the interpretation or enforcement of this Agreement shall be brought exclusively in the court identified in Section 1 recitals, and each party submits to the jurisdiction and venue of such court. The prevailing party in any enforcement action shall be entitled to recover reasonable attorneys' fees and costs.

10. 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 law principles.

11. ENTIRE AGREEMENT; SEVERABILITY

11.1 Entire Agreement. This Agreement, including exhibits and schedules referenced herein, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings and negotiations, whether written or oral.

11.2 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect, and the parties shall negotiate in good faith to replace the invalid provision with a valid provision that, to the greatest extent possible, effects the parties' original intent.

12. AMENDMENT; WAIVER; COUNTERPARTS

12.1 Amendment. This Agreement may be amended or modified only by a written instrument executed by authorized representatives of both parties.

12.2 Waiver. No failure or delay by any party in exercising any right under this Agreement shall operate as a waiver of that right unless the waiver is in writing signed by the waiving party.

12.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution by electronic signature or facsimile shall be deemed execution of an original.

13. MISCELLANEOUS

13.1 No Admission. This Agreement is a compromise of disputed claims and shall not be construed as an admission of liability by any party.

13.2 Assignment. Neither party may assign this Agreement or any rights hereunder without the prior written consent of the other party, except that either party may assign this Agreement in connection with a merger or sale of substantially all of its assets provided that the assignee assumes all obligations hereunder.

ADDITIONAL TERMS

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