Merger Agreement Plan

MERGER AGREEMENT PLAN

This Merger Agreement and Plan (this Agreement) is made and entered into as of by and among Acquiror Name: , a corporation organized under the laws of , with its principal place of business at ; and Target Name: , a corporation organized under the laws of , with its principal place of business at .

RECITALS

WHEREAS, Acquiror is engaged in the business described on Schedule A and desires to acquire all of the issued and outstanding shares of capital stock of Target on the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, the boards of directors of each of Acquiror and Target have determined that the Merger (as defined below) is advisable and in the best interests of their respective stockholders and have approved and declared advisable the execution and delivery of this Agreement; and

WHEREAS, the parties desire to set forth the terms and conditions by which Target shall be merged with and into Acquiror, with Acquiror surviving the Merger, or such other entity as the parties may agree.

NOW, THEREFORE

In consideration of the mutual covenants, representations, warranties and agreements herein contained, the parties agree as follows:

1. DEFINITIONS

1.1 Definitions. For purposes of this Agreement, the following terms have the meanings set forth below: "Affiliate" means any person that directly or indirectly controls, is controlled by, or is under common control with a specified person. "Effective Time" means the time when the Merger becomes effective under applicable law, as specified in Section 2.3. "Material Adverse Effect" means any effect, change, event, occurrence, state of facts or development that is materially adverse to the business, results of operations, assets or financial condition of the specified party, taken as a whole, excluding effects resulting from general economic or market conditions not disproportionately affecting such party.

2. THE MERGER

2.1 Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with applicable law, Target shall be merged with and into Acquiror (the Merger). At the Effective Time, Acquiror shall be the Surviving Corporation and shall continue its corporate existence under the name .

2.2 Effect of Merger. At the Effective Time, the Merger shall have the effects set forth in the applicable statute and, without limitation, the separate corporate existence of Target shall cease and Acquiror shall succeed to and assume all of the rights and obligations of Target as set forth herein.

2.3 Effective Time. The parties shall file or cause to be filed any certificate or articles of merger required by applicable law to effect the Merger. The Effective Time shall be the date and time specified in the certificate of merger filed with the appropriate authority, or such later time as the parties may agree in writing.

3. CONSIDERATION

3.1 Consideration. At the Effective Time, each share of Target Common Stock issued and outstanding immediately prior to the Effective Time (other than shares owned by any party exempt from exchange under this Agreement) shall be converted and exchanged for the Merger Consideration set forth below. The Merger Consideration shall be:

Select form of consideration: Cash Stock of Acquiror Combination

3.2 Cash Amount (if applicable). If cash consideration is selected, the cash amount per share shall be .

3.3 Stock Consideration (if applicable). If stock consideration is selected, the exchange ratio shall be shares of Acquiror Common Stock for each share of Target Common Stock. Shares issued shall be duly authorized, validly issued, fully paid and nonassessable.

4. CLOSING

4.1 Closing. The closing of the Merger (the Closing) shall take place at such place as the parties shall mutually agree, on the Closing Date. The anticipated Closing Date is , subject to satisfaction or waiver of the conditions set forth in Article 7.

4.2 Deliveries at Closing. At the Closing, each party shall deliver such certificates, officers' certificates, resignations, and other documents as are required by this Agreement and applicable law.

5. REPRESENTATIONS AND WARRANTIES

5.1 Representations and Warranties of Each Party. Each party represents and warrants to the other party as of the date of this Agreement and as of the Closing Date (except as expressly qualified by reference to a particular date) that:

(a) Organization and Standing. Such party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to own its properties and to carry on its business as now conducted.

(b) Authority; Enforceability. The execution, delivery and performance of this Agreement by such party have been duly authorized, and this Agreement constitutes a valid and binding obligation enforceable against such party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally.

(c) No Conflicts. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any provision of the organizational documents of such party, (ii) violate any law or regulation applicable to such party, or (iii) result in a breach or default under any material agreement to which such party is a party, in each case except where such violation, breach or default would not reasonably be expected to have a Material Adverse Effect.

6. COVENANTS

6.1 Conduct of Business Prior to Closing. Except as expressly contemplated by this Agreement or consented to in writing by the other party, from the date hereof until the earlier of the Effective Time or the termination of this Agreement, 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 organization, assets and goodwill.

6.2 Access; Information. Each party shall afford the other parties and their representatives reasonable access during normal business hours to its books, records, facilities and personnel as reasonably requested for the purposes of satisfying the conditions to Closing set forth herein, subject to commercially reasonable confidentiality protections.

6.3 Further Assurances. From time to time after the Effective Time, each party shall execute and deliver such other instruments and take such other action as may be reasonably necessary or desirable to effectuate the purposes of this Agreement.

7. CONDITIONS TO CLOSING

7.1 Conditions to Each Party's Obligations. The obligations of each party to consummate the Merger shall be subject to the satisfaction or waiver, at or prior to the Closing, of customary conditions, including without limitation: (a) all necessary corporate approvals shall have been obtained; (b) all required governmental approvals and filings shall have been obtained or made; (c) there shall be no judgment or injunction restraining the consummation of the transactions; and (d) the representations and warranties of the other party shall be true and correct in all material respects (or in a manner specified in this Agreement).

8. TERMINATION

8.1 Termination. This Agreement may be terminated at any time prior to the Effective Time by the mutual written consent of the parties, or by either party if (a) the Closing shall not have occurred by the Outside Date specified in Section 8.2, provided that the terminating party is not in material breach of this Agreement, or (b) the other party has materially breached any representation, warranty, covenant or agreement contained herein and such breach remains uncured following notice and the expiration of any applicable cure period.

8.2 Effect of Termination. In the event of termination of this Agreement in accordance with its terms, this Agreement shall forthwith become void and of no further force or effect, except that the provisions of Sections concerning Confidentiality, Indemnification for certain breaches, Governing Law, Notices, and Survival shall survive termination as expressly provided herein.

9. INDEMNIFICATION

9.1 Survival; Indemnification. The representations, warranties and covenants of the parties shall survive the Closing for the survival period of years, except that fundamental representations shall survive for years. Each party shall indemnify and hold harmless the other parties from and against any losses, claims, damages and liabilities resulting from any breach of such party's representations, warranties or covenants subject to customary deductibles, baskets and caps as set forth on Schedule B.

10. TAX MATTERS

10.1 Tax Returns and Liability. Taxes attributable to any taxable period ending on or before the Effective Time shall be the responsibility of the party to which such income, deduction or credit is attributable. The parties shall cooperate in preparing any joint, consolidated or separate tax returns as required and shall allocate liability for taxes in accordance with the provisions of Schedule C.

11. EMPLOYEE AND BENEFIT MATTERS

11.1 Employment; Benefits. Each party shall take all actions necessary to terminate, amend or continue employee benefit plans in accordance with applicable law and the terms of such plans. Acquiror shall have discretion to determine treatment of employees of Target with respect to continued employment, severance and benefit entitlement; provided that any such treatment shall comply with the representations set forth in Section 5.

12. NOTICES

All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be delivered to the parties at the addresses below (or to such other address as a party may specify by notice to the other party in accordance with this Section).

13. AMENDMENT; WAIVER

13.1 Amendment. This Agreement may be amended, modified or supplemented only by a written instrument signed by each of the parties. No course of dealing or failure to insist upon strict performance shall be deemed a waiver of any right.

14. GOVERNING LAW

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

15. ENTIRE AGREEMENT

15.1 Entire Agreement. This Agreement, together with the schedules and exhibits hereto, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings of the parties, whether written or oral.

16. SEVERABILITY

16.1 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the remainder of this Agreement shall remain in full force and effect and such provision shall be reformed only to the extent necessary to make it enforceable.

17. COUNTERPARTS; EXECUTION

17.1 Counterparts. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed signature page by electronic transmission shall be effective to bind the party executing such signature page.

SCHEDULES AND DISCLOSURES

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