Merger Resolution Agreement

Merger Resolution Agreement

This Merger Resolution Agreement (the Agreement) is made as of by and between , a organized under the laws of , with principal office at (Surviving Company), and , a organized under the laws of , with principal office at (Acquirer).

RECITALS

WHEREAS, the respective Boards of Directors of each party have determined that a merger of the parties as contemplated herein is advisable and in the best interests of their respective companies and shareholders; and the Board of Directors of approved the Merger by resolution dated .

WHEREAS, the shareholders of each party have authorized, in accordance with applicable law and the respective governing documents, the consummation of the Merger upon the terms and subject to the conditions set forth in this Agreement; and the parties desire by this Agreement to fix and determine the terms and conditions under which the Merger shall be consummated.

WHEREAS, the parties intend the Merger to take effect on the Effective Time described below and agree to take all actions necessary to carry out the transactions contemplated by this Agreement.

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

1. MERGER

1.1 Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time the Acquirer shall be merged with and into the Surviving Company (the Merger), and the separate existence of the Acquirer shall cease, with the Surviving Company continuing as the surviving corporation.

1.2 Effective Time. The Merger shall become effective at the time and on the date (the Effective Time) that the articles of merger or comparable filing become effective under the laws of or at such other time as the parties may agree in writing, which agreed time shall be set forth as .

2. CONVERSION OF SHARES

2.1 Conversion. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, all shares of capital stock and membership or partnership interests of each party shall be converted as follows: each share or interest of the Acquirer shall be converted into in the Surviving Company, subject to adjustments and rounding as set forth in Section 2.2.

2.2 Rounding and Fractional Consideration. No fractional shares shall be issued. If any fractional interest would otherwise be issued, such fractional interest shall be rounded or cashed out for an amount equal to per fractional interest, subject to customary rounding rules.

3. CONSIDERATION

3.1 Consideration. The aggregate consideration to be paid to holders of the Acquirer shall consist of the form and amounts described in the conversion set forth in Section 2.1. The Surviving Company shall deliver all consideration at or prior to the Closing in accordance with the provisions of this Agreement.

3.2 Escrow and Withholding. The Surviving Company shall be entitled to deduct and withhold from any amounts otherwise payable under this Agreement such amounts as the Surviving Company determines in good faith are required to be withheld by applicable law for taxes or as may be agreed between the parties and placed into escrow under terms agreed by the parties.

4. REPRESENTATIONS AND WARRANTIES

4.1 Representations of Each Party. Each party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (b) it has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; and (c) this Agreement has been duly authorized, executed and delivered by the party and constitutes a valid and binding obligation enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws of general application and by equitable principles.

4.2 Additional Warranties of the Surviving Company. The Surviving Company further warrants that, to the best of its knowledge after reasonable inquiry, there are no undisclosed liabilities or litigation pending that would reasonably be expected to prevent consummation of the Merger.

5. COVENANTS

5.1 Conduct of Business. Each party covenants that between the date of this Agreement and the Effective Time it shall conduct its business only in the ordinary course and shall not, without the prior written consent of the other party, take any action that would be reasonably likely to adversely affect the ability to consummate the Merger.

5.2 Necessary Approvals. Each party shall use its commercially reasonable efforts to obtain all required corporate approvals, regulatory consents and third-party consents necessary to consummate the Merger, including, without limitation, the approvals of its board of directors and shareholders where required.

6. CONDITIONS TO CLOSING

6.1 Conditions to Obligations. The respective 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 of the other party shall be true and correct in all material respects as of the Effective Time; (b) all covenants required to be performed prior to the Effective Time shall have been performed in all material respects; and (c) no applicable law or order shall prohibit the consummation of the Merger.

7. CLOSING

7.1 Closing. The closing of the Merger (the Closing) shall take place at such location and time as the parties may mutually agree, but in no event later than unless extended by mutual written agreement of the parties.

7.2 Deliveries at Closing. At the Closing, each party shall deliver such certificates, instruments, resignations, powers of attorney and other documents as are necessary to effect the Merger and as required by this Agreement.

8. TAX MATTERS

8.1 Tax Treatment. The parties agree to report and treat the Merger for all tax purposes in accordance with their good faith determination of the applicable tax law. Each party shall cooperate and provide the other with such information and take such actions as reasonably requested to enable the parties to file any required tax returns and to obtain any available tax benefits.

8.2 Tax Indemnity. Each party shall be responsible for its own pre-Closing tax liabilities and shall indemnify the other party for any tax liabilities resulting from the breach of any representation or covenant relating to tax matters.

9. INDEMNIFICATION

9.1 Survival. The representations, warranties and covenants contained in this Agreement shall survive the Effective Time for a period of unless otherwise specified herein.

9.2 Indemnification Procedures. Any claim for indemnification shall be made in writing and shall describe the nature and amount of the claim with reasonable specificity. The indemnifying party shall have the right to assume the defense of any claim, with counsel reasonably acceptable to the indemnified party.

10. NOTICES

All notices, requests, consents and other communications hereunder shall be in writing and shall be delivered by hand, nationally recognized overnight courier, or certified mail, return receipt requested, to the addresses set forth above or to such other address as a party may designate by notice delivered in accordance with this Section.

11. AMENDMENTS; WAIVER; COUNTERPARTS

11.1 Amendments. This Agreement may be amended or modified only by a written instrument executed by each party.

11.2 Waiver. No failure or delay by any party in exercising any right hereunder shall operate as a waiver of such right, and no single or partial exercise of any right shall preclude any other or further exercise of such right or the exercise of any other right.

11.3 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. Signatures delivered electronically or by facsimile shall be effective for all purposes.

12. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

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

12.2 Entire Agreement. This Agreement, including any schedules and exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written or oral, between the parties relating to the Merger.

12.3 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties shall endeavor in good faith to replace the invalid, illegal or unenforceable provision with a valid provision the economic effect of which comes as close as possible to that of the invalid provision.

13. MISCELLANEOUS

13.1 Further Assurances. Each party shall execute and deliver such further instruments and take such further actions as may be reasonably necessary or desirable to carry out the purposes of this Agreement.

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