Merger Agreement Template

MERGER AGREEMENT

This Merger Agreement (the Agreement) is entered into as of by and between Acquiror Name: , a corporation organized under the laws of with principal place of business at (Acquiror), and Target Name: , a corporation organized under the laws of with principal place of business at (Target). Acquiror and Target are each a Party and collectively the Parties.

RECITALS

WHEREAS, the boards of directors of Acquiror and Target have determined that it is advisable and in the best interests of their respective stockholders to combine their businesses on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, Target's board of directors has approved the Merger and recommended that Target's stockholders approve the Merger; the date of Target board approval is ;

WHEREAS, Acquiror's board of directors has approved the Merger; the date of Acquiror board approval is ;

NOW, THEREFORE, in consideration of the mutual covenants and 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, capitalized terms used herein shall have the meanings set forth in this Section. "Affiliate" means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person. "Business Day" means a day other than a Saturday, Sunday or a day on which banking institutions in the state of are authorized or required to be closed. Other defined terms are set forth in the context in which they are used.

2. THE MERGER

Subject to the terms and conditions of this Agreement, at the Effective Time (as defined herein) and pursuant to applicable law, Target shall be merged with and into Acquiror (the Merger), and Target shall cease to exist or, if a subsidiary merger is elected, Target shall become a wholly-owned subsidiary of Acquiror. The Effective Time shall be the date and time specified by the Parties and, if necessary, by filing with the Secretary of State, or on such other date agreed in writing by the Parties.

3. CLOSING

The closing of the Merger (the Closing) shall take place at the offices of on the date that is the later of (a) and (b) the date upon which all conditions set forth in Article 8 have been satisfied or waived (the Closing Date).

4. CONSIDERATION

At the Effective Time, by virtue of the Merger and without any further act, each share of Target common stock outstanding immediately prior to the Effective Time, other than Dissenting Shares, shall be converted into the right to receive the Per-Share Consideration specified below.

Cash Stock Mixture of Cash and Stock

5. REPRESENTATIONS AND WARRANTIES OF ACQUIROR

Acquiror represents and warrants to Target that, as of the date of this Agreement and as of the Closing Date: (a) Acquiror is a corporation duly organized, validly existing and in good standing under the laws of the state set forth above and has all requisite corporate power and authority to enter into and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Acquiror have been duly authorized by all necessary corporate action; (c) this Agreement constitutes a valid and binding obligation of Acquiror enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application relating to or affecting creditors' rights and to general equitable principles; and (d) there is no action, suit, arbitration or proceeding pending or, to Acquiror's knowledge, threatened against Acquiror that would reasonably be expected to prevent or materially delay the consummation of the Merger.

6. REPRESENTATIONS AND WARRANTIES OF TARGET

Target represents and warrants to Acquiror that, as of the date of this Agreement and as of the Closing Date: (a) Target is a corporation duly organized, validly existing and in good standing under the laws of the state set forth above and has all requisite corporate power and authority to enter into and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Target have been duly authorized by all necessary corporate action and, to Target's knowledge, all required corporate or shareholder approvals have been or will be obtained; (c) Target has good and marketable title to all material assets reflected on its financial statements, free and clear of any material Liens except as disclosed in Target's disclosure schedule; and (d) Target has complied in all material respects with applicable laws and regulations relating to the conduct of its business, except where noncompliance would not have a Material Adverse Effect on Target.

7. COVENANTS

Between the date hereof and the Closing Date, each Party shall: (a) use commercially reasonable efforts to satisfy the conditions to Closing set forth in Article 8; (b) preserve intact its business organizations, employment relationships and material assets; (c) conduct its business in the ordinary course consistent with past practice; and (d) provide promptly to the other Party all information reasonably necessary to prepare any documents required to be delivered at Closing.

8. CONDITIONS TO CLOSING

The obligations of each Party to consummate the Merger are subject to the satisfaction (or waiver by the Party entitled to the benefit thereof) of the following conditions: (a) all representations and warranties contained in this Agreement shall be true and correct in all material respects at and as of the Closing Date except for de minimis inaccuracies that do not have a Material Adverse Effect; (b) each Party shall have performed in all material respects its covenants required to be performed prior to Closing; and (c) all necessary approvals of regulatory authorities and third parties shall have been obtained or waived.

9. INDEMNIFICATION

From and after the Closing, the Parties shall indemnify, defend and hold harmless the other Party and its Affiliates from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from (a) any breach of any representation, warranty or covenant of the indemnifying Party contained in this Agreement, or (b) any Excluded Liability set forth on the applicable disclosure schedule. Limits on indemnification, survival periods and procedures for making indemnification claims shall be as set forth in the parties' negotiated schedules.

10. TERMINATION

This Agreement may be terminated prior to the Effective Time: (a) by mutual written consent of the Parties; (b) by either Party if the Closing has not occurred by , provided that the terminating Party is not in material breach; or (c) by either Party if a court of competent jurisdiction or Governmental Entity has issued an injunction or order permanently restraining the Merger.

11. REMEDIES

The remedies provided in this Agreement are cumulative and in addition to any other remedies available at law or in equity. Except as expressly set forth herein, neither Party shall be liable for consequential or punitive damages; the Parties acknowledge that actual damages for certain breaches may be difficult to ascertain and that indemnification provisions are intended to address such breaches.

12. NOTICES

All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be deemed effectively given upon personal delivery, delivery by nationally recognized overnight courier, or three Business Days after deposit in the United States mail, first-class, postage prepaid, addressed as follows unless another address is specified in writing:

13. AMENDMENTS; WAIVER

This Agreement may be amended only by a written instrument executed by both Parties. Any waiver of a provision of this Agreement must be in writing and signed by the Party granting the waiver. No delay or omission by any Party in exercising any right will operate as a waiver of such right.

14. GOVERNING LAW

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

15. ENTIRE AGREEMENT

This Agreement, together with the schedules and exhibits delivered pursuant hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, relating to such subject matter.

16. SEVERABILITY

If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, such determination will not affect any other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

17. 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 and delivery of this Agreement by electronic signature, facsimile or other electronic transmission shall be binding and effective for all purposes.

18. DEFINITIONS OF MATERIAL ADVERSE EFFECT AND RELATED TERMS

For purposes of this Agreement, "Material Adverse Effect" means any change, event, occurrence, circumstance or effect that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the affected Party, except to the extent resulting from (a) changes affecting the industry generally, (b) changes in general economic conditions, or (c) acts of war or terrorism. The Parties acknowledge that the determination of whether a Material Adverse Effect has occurred shall take into account both absolute and relative effects.

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