Common use of REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB Clause in Contracts

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 3 contracts

Samples: Agreement and Plan of Merger and Reorganization (Bell Robert G.), Agreement and Plan of Merger and Reorganization (Tanimoto Sarina), Agreement and Plan of Merger and Reorganization (Silverback Therapeutics, Inc.)

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REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; 50 DOC ID - 32901658.22 1 Section 4.1 Organization 50 Section 4.2 Authority 50 Section 4.3 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionConflicts; Consents 28 3.6 Capitalization 29 3.7 and Approvals 50 Section 4.4 Capital Stock 51 Section 4.5 Parent SEC Filings; Filings 51 Section 4.6 Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 52 Section 4.7 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property52 Section 4.8 Governmental Authorizations; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Compliance with Law 53 Section 4.9 Litigation 53 Section 4.10 Absence of Changes 53 Section 4.11 Brokers 53 Section 4.12 Transactions with Affiliates 44 3.21 Insurance 44 3.22 53 Section 4.13 Acquisition of Equity For Investment 54 Section 4.14 Financing 54 Section 4.15 Solvency 55 Section 4.16 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion Prior Operations of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Merger Sub 55 Section 4.17 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Shares 56 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 4.18 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 56 Section 4.19 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Other Representations and Warranties 56 Article 5 COVENANTS 57 Section 5.1 Conduct of Business of the Company 57 Section 5.2 Conduct of Business of Parent 59 Section 5.3 Access to Information 60 Section 5.4 Efforts to Consummate 61 Section 5.5 Public Announcements 63 Section 5.6 Indemnification; Directors’ and Officers’ Insurance 64 Section 5.7 Exclusive Dealing 65 Section 5.8 Documents and Information 65 Section 5.9 Contact with Customers, Suppliers and Other Business Relations 66 Section 5.10 Transfer Taxes 66 Section 5.11 Termination of Funded Indebtedness 66 Section 5.12 Financing 66 Section 5.13 Representation and Warranty Policy 70 Section 5.14 Company Stockholder Vote 70 Section 5.15 Takeover Statutes 72 10.2 Amendment Section 5.16 Listing of Parent Common Shares 72 10.3 WaiverSection 5.17 Intentionally omitted 72 . 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 AttorneysSection 5.18 Company Actions 72 Section 5.19 StockholdersFees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Agreement 72 Section 5.20 Registration Rights Agreement 72 Section 5.21 Xxxxxx Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.72 DOC ID - 32901658.22 2 Section 5.22 Termination Fee 72 Section 5.23 Retained Cash 73 Section 5.24 Nasdaq Listing Limitations 73

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Priority Technology Holdings, Inc.), Agreement and Plan of Merger (Priority Technology Holdings, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization30 Section 4.01. Corporate Organization 30 Section 4.02. Authority Relative to This Agreement 30 Section 4.03. No Conflict; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Filings and Consents 28 3.6 31 Section 4.04. Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 31 Section 4.05. Available Funds and Financing 32 Section 4.06. Brokers 32 Section 4.07. Guarantees 33 Section 4.08. Absence of Changes 32 3.9 Litigation 33 Section 4.09. Ownership of Company Shares 33 Section 4.10. Solvency 33 Section 4.11. Parent Group Contracts 34 Section 4.12. No Competitive Products 32 3.10 Absence Additional Representations 34 ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER 34 Section 5.01. Conduct of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4Business by the Company Pending the Merger 34 Section 5.02. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Companyand Merger Sub’s Business 47 4.3 38 Section 5.03. No Control of Other Party’s Business 38 ARTICLE VI ADDITIONAL AGREEMENTS 38 Section 6.01. Proxy Statement and Schedule 13E-3 38 Section 6.02. Shareholders’ Meeting 40 Section 6.03. Access to Information 41 Section 6.04. No Solicitation of Transactions 43 Section 6.05. Directors’ and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Officers’ Indemnification and Insurance 46 Section 6.06. Notification of Certain Matters 48 Section 6.07. Financing 49 Section 6.08. Further Action; Reasonable Best Efforts 50 Section 6.09. Obligations of Merger Sub 51 4.7 Potentially Transferable Assets Section 6.10. Participation in Litigation 51 Section 6.11. Resignations 51 Section 6.12. Public Announcements 51 Section 6.13. Stock Exchange Delisting 51 Section 6.14. Takeover Statutes 52 4.8 Termination Section 6.15. No Amendment to Parent Group Contracts 52 ARTICLE VII CONDITIONS TO THE MERGER 52 Section 7.01. Conditions to the Obligations of Employees Each Party 52 Section 7.02. Conditions to the Obligations of Parent 52 and Merger Sub 53 TABLE OF CONTENTS (continued) SECTION 5Page Section 7.03. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Conditions to the Obligations of the Company Information Statement; Stockholder Written 54 Section 7.04. Frustration of Closing Conditions 54 ARTICLE VIII TERMINATION 55 Section 8.01. Termination by Mutual Consent 53 5.3 55 Section 8.02. Termination by Either the Company or Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Section 8.03. Termination by the Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 55 Section 8.04. Termination of Certain Agreements and Rights 64 5.15 by Parent 56 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 68.05. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; 56 Section 8.06. Termination Fees 70 SELECTION 10Fee and Expenses 57 ARTICLE IX GENERAL PROVISIONS 59 Section 9.01. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations Representations, Warranties and Warranties 72 10.2 Amendment 72 10.3 WaiverAgreements 59 Section 9.02. 72 10.4 Notices 59 Section 9.03. Certain Definitions 61 Section 9.04. Severability 75 Section 9.05. Interpretation 75 Section 9.06. Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Assignment 76 Section 9.07. Parties in Interest 76 Section 9.08. Specific Performance 76 Section 9.09. Governing Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Dispute Resolution 77 Section 9.10. Amendment 78 Section 9.11. Waiver 78 Section 9.12. Counterparts 78 Section 9.13. Lender Limitations 79 Section 9.14. Original Merger Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire 79 AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into ), dated as of July 21February 18, 20222019 (the “Amended Execution Date”), by and among SILVERBACK THERAPEUTICSTeamsport Parent Limited, INC., a Delaware corporation an exempted company with limited liability incorporated under the Law of the Cayman Islands (“Parent”), SABRE MERGER SUBTeamsport Bidco Limited, INC. an exempted company with limited liability incorporated under the Law of the Cayman Islands and a Delaware corporation and wholly wholly-owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSeHi Car Services Limited, INC., a Delaware corporation an exempted company with limited liability incorporated under the Law of the Cayman Islands (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 2 contracts

Samples: Plan of Merger (Ocean Imagination L.P.), Plan of Merger (Ctrip Investment Holding Ltd.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 16 4.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityOrganization and Good Standing 16 4.2 Capitalization of Parent 16 4.3 Merger Sub 17 4.4 Authorization; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 18 4.5 Governmental Approvals 18 4.6 No Violations 18 4.7 SEC Filings; Filings and Parent Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 19 4.8 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 20 4.9 Compliance with Laws 20 4.10 Regulatory Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Qualifications 20 4.11 Absence of Certain Changes 21 4.12 Taxes and Returns 21 4.13 Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 on Business Activities 22 4.14 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental 22 4.15 Employee Matters 43 3.20 22 4.16 Material Contracts 22 4.17 Litigation 23 4.18 Transactions with Affiliates 44 3.21 23 4.19 Investment Company Act 23 4.20 Books and Records 23 4.21 Finders and Investment Bankers 23 4.22 Information Supplied 23 4.23 Trust Fund. 24 4.24 Intellectual Property 24 4.25 Real Property 24 4.26 Environmental Matters 24 4.27 Insurance 44 3.22 24 4.28 Bankruptcy 24 4.29 OTC Bulletin Board Quotation 25 4.30 Registration of the Ordinary Shares and the Warrants 25 4.31 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion Additional Representations 25 4.32 Board Approval; Tender Offer 25 ARTICLE V COVENANTS 25 5.1 Conduct of Financial Advisor 44 3.26 Disclaimer Business of Other Representations or Warranties 44 SECTION 4. CERTAIN the Company 25 5.2 Access and Information; Confidentiality 27 5.3 No Solicitation 27 5.4 Takeover Laws 29 5.5 Shareholder Litigation 30 5.6 Conduct of Business of Parent and Merger Sub 30 5.7 Market Standoff Agreement 31 ARTICLE VI ADDITIONAL COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 32 6.1 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 32 6.2 Stockholder Approval 65 Commercially Reasonable Efforts 32 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 WaiverWarranties; Indemnification. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form 33 6.4 Public Announcements 38 6.5 Tender Offer 38 6.6 Reservation of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Preferred Shares 40

Appears in 2 contracts

Samples: Agreement and Plan of Reorganization (Bimini Capital Management, Inc.), Agreement and Plan of Reorganization (FlatWorld Acquisition Corp.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 33 Section 5.1 Organization, Standing and Power 33 Section 5.2 Capital Structure 34 Section 5.3 Authority; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionViolations; Consents 28 3.6 Capitalization 29 3.7 and Approvals 33 Section 5.4 Consents 36 Section 5.5 SEC FilingsDocuments; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 37 Section 5.6 Absence of Certain Changes 32 3.9 or Events 38 Section 5.7 No Competitive Products 32 3.10 Absence of Undisclosed Material Liabilities 32 3.11 Title to Assets 32 3.12 Real Property38 Section 5.8 Information Supplied 38 Section 5.9 Parent Permits; Leasehold 32 3.13 Compliance with Applicable Law 39 Section 5.10 Compensation; Benefits 39 Section 5.11 Labor Matters 41 Section 5.12 Taxes 42 Section 5.13 Litigation 43 Section 5.14 Intellectual Property 33 3.14 Agreements, Contracts 43 Section 5.15 Real Property 44 Section 5.16 Rights-of-Way 45 Section 5.17 Oil and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Gas Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 45 Section 5.18 Environmental Matters 43 3.20 48 Section 5.19 Material Contracts 48 Section 5.20 Insurance 50 Section 5.21 Derivative Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 and Hedging 51 Section 5.22 Opinion of Financial Advisor 44 3.26 Disclaimer 51 Section 5.23 Brokers 51 Section 5.24 Related Party Transactions 52 Section 5.25 Business Conduct 52 Section 5.26 Regulatory Matters 52 Section 5.27 Tax Treatment 52 Section 5.28 No Additional Representations. 52 ARTICLE VI COVENANTS AND AGREEMENTS 53 Section 6.1 Conduct of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Company Business 44 4.2 Operation of Pending the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees Merger 53 Section 6.2 Conduct of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Business Pending the Merger 57 Section 6.3 No Solicitation by the Company 60 Section 6.4 No Solicitation by Parent 66 Section 6.5 Preparation of Joint Proxy Statement 52 5.2 Company Statement, Exchange Prospectus, Registration Statements and Prepackaged Plan 72 Section 6.6 Stockholders Meeting 73 Section 6.7 Access to Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory 75 Section 6.8 HSR and Other Approvals 57 5.5 Company Options and Company Warrants 58 5.6 76 Section 6.9 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.78

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Bonanza Creek Energy, Inc.), Registration Rights Agreement (Bonanza Creek Energy, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 47 Section 4.01. Corporate Existence and Power 47 Section 4.02. Corporate Authorization 47 Section 4.03. Governmental Authorization 47 Section 4.04. Non-Contravention; Consents 28 3.6 contravention 48 Section 4.05. Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence and Operations of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 AntiMerger Sub. 48 Section 4.06. Litigation. 48 Section 4.07. Information Supplied 48 Section 4.08. Not an Interested Stockholder. 49 Section 4.09. Finders’ Fees 49 Section 4.10. Available Funds 49 Section 4.11. Independent Investigation. 49 Section 4.12. Non-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN Reliance 49 ARTICLE 5 COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation COMPANY 50 Section 5.01. Conduct of the Company’s Business 47 4.3 Company 50 Section 5.02. Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5to Information 54 Section 5.03. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Company Stockholders’ Meeting 55 5.4 Regulatory Approvals Section 5.04. Acquisition Proposals; Change of Recommendation 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 5.05. Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 62 Section 5.06. Stock Exchange Delisting; Exchange Act Deregistration 62 Section 5.07. Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 662 Section 5.08. CONDITIONS PRECEDENT TO OBLIGATIONS Interim Communications by the Company. 62 Section 5.09. Transaction Litigation. 63 Section 5.10. Outstanding Company Warrants. 63 ARTICLE 6 COVENANTS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination PARENT 64 Section 6.01. Obligations of Merger Sub 64 Section 6.02. Director and Officer Liability 64 Section 6.03. Employee Matters 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS ARTICLE 7 COVENANTS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy 68 Section 7.01. Reasonable Best Efforts 68 Section 7.02. Public Announcements 70 Section 7.03. Notices of Representations 67 8.2 Performance Certain Events 70 ARTICLE 8 CONDITIONS TO THE MERGER 71 Section 8.01. Conditions to the Obligations of Covenants 67 8.3 Documents 68 8.4 No Each Party 71 Section 8.02. Conditions to the Obligations of Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9and Merger Sub 71 Table of Contents Section 8.03. Conditions to the Obligations of the Company 72 ARTICLE 9 TERMINATION 68 9.1 73 Section 9.01. Termination 68 9.2 73 Section 9.02. Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 1075 ARTICLE 10 MISCELLANEOUS 77 Section 10.01. MISCELLANEOUS PROVISIONS 72 10.1 Non-Notices 77 Section 10.02. Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver78 Section 10.03. 72 10.4 Expenses 78 Section 10.04. Entire AgreementAgreement 78 Section 10.05. Binding Effect; CounterpartsBenefit; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 Assignment 78 Section 10.06. No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit 78 Section 10.07. Amendments and Waivers 79 Section 10.08. Severability 79 Section 10.09. Disclosure Letter and SEC Document References 79 Section 10.10. Guarantee. 80 Section 10.11. Governing Law 80 Section 10.12. Jurisdiction 80 Section 10.13. WAIVER OF JURY TRIAL 81 Section 10.14. Specific Performance 81 Section 10.15. Counterparts; Effectiveness 81 EXHIBIT A Definitions Exhibit B-1 Form FORM OF CVR AGREEMENT 83 EXHIBIT B CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION 106 Table of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Contents AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION dated as of August 20, 2023 (this “Agreement”) is made and entered into as of July 21), 2022among XXX US Holding, by and among SILVERBACK THERAPEUTICS, INC.Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBXXX Spiny Merger Sub, INC. Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”), XXX Pharma A/S, a Danish Aktieselskab (“Guarantor”) and ARS PHARMACEUTICALSTimber Pharmaceuticals, INC.Inc., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Timber Pharmaceuticals, Inc.), Agreement and Plan of Merger (Timber Pharmaceuticals, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization​ 36 Section 5.1 ​ Organization and Qualification ​ 36 Section 5.2 ​ Authority ​ 36 Section 5.3 ​ No Conflict; Required Filings and Consents ​ 37 Section 5.4 ​ Litigation ​ 37 Section 5.5 ​ Information Supplied ​ 37 Section 5.6 ​ Brokers ​ 38 Section 5.7 ​ Available Funds ​ 38 Section 5.8 ​ Solvency ​ 38 Section 5.9 ​ No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature Agreements with Company Related Parties ​ 38 Section 5.10 ​ No Vote of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE Parent Equityholders ​ 38 Section 5.11 ​ Ownership of Company Common Stock ​ 38 Section 5.12 ​ Taxes ​ 39 ARTICLE 6 COVENANTS RELATING TO CONDUCT OF CONTENTS (continued) 3.8 Absence BUSINESS PENDING THE MERGER ​ 39 Section 6.1 ​ Conduct of Changes 32 3.9 Business by Company ​ 39 Section 6.2 ​ Other Actions ​ 44 Section 6.3 ​ No Competitive Products 32 3.10 Absence Control of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN Business ​ 45 ARTICLE 7 ADDITIONAL COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation ​ 45 Section 7.1 ​ Preparation of the Company’s Business Proxy Statement; Stockholders Meeting ​ 45 Section 7.2 ​ Access to Information; Confidentiality ​ 46 Section 7.3 ​ No Solicitation; Company Acquisition Proposals ​ 47 4.3 Access Section 7.4 ​ Public Announcements ​ 50 Section 7.5 ​ Indemnification; Directors' and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation Officers' Insurance ​ 51 4.6 Section 7.6 ​ Appropriate Action; Consents; Filings ​ 53 Section 7.7 ​ Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information StatementMatters; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Transaction Litigation ​ 54 Section 7.8 ​ Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 ​ 55 Section 7.9 ​ Dividends ​ 55 Section 7.10 ​ Voting of Shares ​ 55 Section 7.11 ​ Company Financial Statements 64 5.19 DRIP; Company Share Redemption Plan ​ 56 Section 7.12 ​ Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. ​ 56 Section 7.13 ​ Tax Representation Letters ​ 56 Section 7.14 ​ Related Party Agreements ​ 56 Section 7.15 ​ Merger Sub; Subsidiaries ​ 57 Section 7.16 ​ Transfer Taxes ​ 57 Section 7.17 ​ Deregistration of Company Securities ​ 57 Section 7.18 ​ REIT Qualification Offering ​ 57 Section 7.19 ​ Payments at Closing ​ 57 Section 7.20 ​ Like Kind Exchanges ​ 57 ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT ​ 58 Section 8.1 ​ Conditions to Each Party's Obligation to Effect the Merger ​ 58 Section 8.2 ​ Conditions to Obligations of Parent and Merger Sub ​ 58 Section 8.3 ​ Conditions to Obligations of Company ​ 59 ARTICLE 9 TERMINATION AND MERGER SUB 66 7.1 Accuracy FEES ​ 60 Section 9.1 ​ Termination ​ 60 Section 9.2 ​ Notice of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Termination; Effect of Termination 70 ​ 61 ​ ​ Section 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS and Expenses ​ 62 ARTICLE 10 GENERAL PROVISIONS 72 ​ 63 Section 10.1 Non-Survival ​ Nonsurvival of Representations and Warranties 72 and Certain Covenants ​ 63 Section 10.2 Amendment 72 ​ Notices ​ 63 Section 10.3 Waiver. 72 ​ Severability ​ 64 Section 10.4 ​ Counterparts ​ 65 Section 10.5 ​ Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Third-Party Beneficiaries 75 ​ 65 Section 10.6 ​ Amendment ​ 65 Section 10.7 ​ Extension; Waiver ​ 65 Section 10.8 ​ Governing Law ​ 66 Section 10.9 ​ Consent to Jurisdiction ​ 66 Section 10.10 ​ Assignment ​ 66 Section 10.11 ​ Remedies ​ 66 Section 10.12 ​ Waiver of Jury Trial ​ 67 Section 10.13 Construction 75 Exhibits: ​ Authorship ​ 67 ​ EXHIBIT AND DISCLOSURE LETTERS Exhibit A Definitions Exhibit B-1 A-1—Form of Company Stockholder Support Agreement REIT Qualification Opinion Exhibit B-2 A-2—Form of Parent Stockholder Support BTC Spinco REIT Qualification Opinion Exhibit B—Merger Agreement Amendments Exhibit C-1 C—Form of Tax Matters Agreement Disclosure Letters Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Disclosure Letter iv AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into MERGER, dated as of July 2115, 20222019 (this "Agreement"), is by and among SILVERBACK THERAPEUTICSPrologis, INC.L.P., a Delaware corporation limited partnership ("Parent"), SABRE MERGER SUBIndustrial Property Trust Inc., INC. a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes ("Company"), and Rockies Acquisition LLC, a Delaware corporation limited liability company and wholly owned subsidiary of Parent ("Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”"). Certain capitalized Each of Parent, Merger Sub and Company is sometimes referred to herein as a "Party" and collectively as the "Parties." Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in this Agreement are defined in Exhibit A.Article 1.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Prologis, L.P.), Agreement and Plan of Merger (Industrial Property Trust Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 21 Section 5.1. Corporate Existence and Power 21 Section 5.2. Corporate Authorization 21 Section 5.3. Governmental Authorization 21 Section 5.4. Non-ContraventionContravention 22 Section 5.5. Disclosure Documents 22 Section 5.6. Finders’ Fees 22 Section 5.7. Financing 22 Section 5.8. Equity Rollover Commitments; Consents Management Agreements 23 Section 5.9. Parent and Merger Sub 23 Section 5.10. Ownership of Shares 23 Section 5.11. Interest in Competitors 24 Section 5.12. No Other Representations and Warranties 24 Section 5.13. Guarantee 24 Section 5.14. Solvency 24 Section 5.15. Disclosure 24 ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER 25 Section 6.1. Conduct of the Company and Subsidiaries 25 Section 6.2. Conduct of Parent and Merger Sub 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Section 6.3. No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer Control of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of ParentParty’s Business 28 ARTICLE VII ADDITIONAL AGREEMENTS 28 Section 7.1. Stockholder Meeting; Proxy Material 28 Section 7.2. Reasonable Best Efforts 29 Section 7.3. Access to Information 32 Section 7.4. Solicitation 32 Section 7.5. Director and Officer Liability 36 Section 7.6. Takeover Statutes 37 Section 7.7. Public Announcements 37 Section 7.8. Employee Matters 37 Section 7.9. Financing 38 Section 7.10. Debt Tender Offers 41 Section 7.11. Notices of Certain Events 42 Section 7.12. Confidentiality Agreements 43 Section 7.13. Vesting of Company Equity Awards 43 Section 7.14. Rule 16b-3 43 ARTICLE VIII CONDITIONS TO THE MERGER 44 4.2 Operation Section 8.1. Conditions to the Obligations of Each Party 44 Section 8.2. Conditions to the Obligations of Parent and Merger Sub 44 Section 8.3. Conditions to the Obligations of the Company’s Business Company 45 ARTICLE IX TERMINATION 45 Section 9.1. Termination 45 Section 9.2. Termination Fee 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5Section 9.3. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 1049 ARTICLE X MISCELLANEOUS 49 Section 10.1. MISCELLANEOUS PROVISIONS 72 10.1 Non-Notices 49 Section 10.2. Survival of Representations and Warranties 72 10.2 50 Section 10.3. Expenses 51 Section 10.4. Amendment 72 10.3 Waiver51 Section 10.5. 72 10.4 Entire Agreement; Waiver 51 Section 10.6. Successors and Assigns 51 Section 10.7. Governing Law 51 Section 10.8. Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable LawEffectiveness; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support 51 Section 10.9. Severability 52 Section 10.10. Entire Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire 52 Section 10.11. Jurisdiction 52 Section 10.12. Authorship 53 Section 10.13. Remedies 53 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21this 23rd day of February, 2022, 2007 by and among SILVERBACK THERAPEUTICSStation Casinos, INC.Inc., a Delaware Nevada corporation (the “Company”), Xxxxxxxx Colony Partners LLC, a Nevada limited liability company (“Parent”), SABRE MERGER SUBand FCP Acquisition Sub, INC. a Delaware Nevada corporation and wholly a wholly-owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Station Casinos Inc), Agreement and Plan of Merger (Station Casinos Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 31 Section 4.1 Qualification, Organization, Etc 31 Section 4.2 Capital Stock 32 Section 4.3 Corporate Authority Relative to this Agreement; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityViolation 33 Section 4.4 Reports and Financial Statements 34 Section 4.5 No Undisclosed Liabilities 34 Section 4.6 Compliance 35 Section 4.7 Investigations; Binding Nature Litigation 35 Section 4.8 Debt Financing 35 Section 4.9 Information Supplied 36 Section 4.10 Solvency 36 Section 4.11 Material Contracts 37 Section 4.12 Finders or Brokers 38 Section 4.13 Required Vote 38 Section 4.14 No Additional Representations 38 ARTICLE V COVENANTS AND AGREEMENTS 38 Section 5.1 Conduct of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Business by the Company 38 Section 5.2 Conduct of Business by Parent 43 Section 5.3 Investigation 45 Section 5.4 Exclusive Dealing 46 Section 5.5 Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence Other Actions 51 Section 5.6 Regulatory Approvals; Reasonable Best Efforts 53 Section 5.7 Takeover Statute 55 Section 5.8 Public Announcements 55 Section 5.9 Indemnification and Insurance 56 Section 5.10 Control of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Operations 57 Section 5.11 Stock Exchange Listing 58 Section 5.12 Financing 58 Section 5.13 Verso Junior Noteholder Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 64 Section 5.14 Verso Junior Notes 64 Section 5.15 Shareholder Litigation 66 Section 5.16 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax 66 Section 5.17 Employee Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination 66 Section 5.18 Cooperation with Solvency Opinion 68 Section 5.19 Confirmation of Certain Agreements and Rights 64 5.15 Capitalization 68 Section 5.20 Recapitalization Dividend 69 Section 5.21 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.71 Section 5.22 Share Consideration Adjustment 71

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Verso Paper Corp.), Agreement and Plan of Merger (NewPage Holdings Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 35 Section 5.1 Organization, Standing and Power 35 Section 5.2 Capital Structure 36 Section 5.3 Authority; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionViolations; Consents 28 3.6 Capitalization 29 3.7 and Approvals 37 Section 5.4 Consents 38 Section 5.5 SEC FilingsDocuments; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 38 Section 5.6 Absence of Certain Changes 32 3.9 or Events 40 Section 5.7 No Competitive Products 32 3.10 Absence of Undisclosed Material Liabilities 32 3.11 Title to Assets 32 3.12 Real Property40 Section 5.8 Information Supplied 40 Section 5.9 Parent Permits; Leasehold 32 3.13 Compliance with Applicable Law 41 Section 5.10 Compensation; Benefits 41 Section 5.11 Labor Matters 43 Section 5.12 Taxes 44 Section 5.13 Litigation 45 Section 5.14 Intellectual Property 33 3.14 Agreements, Contracts 45 Section 5.15 Real Property 46 Section 5.16 Rights-of-Way 46 Section 5.17 Oil and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Gas Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 47 Section 5.18 Environmental Matters 43 3.20 50 Section 5.19 Material Contracts 50 Section 5.20 Insurance 52 Section 5.21 Derivative Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 and Hedging 53 Section 5.22 Opinion of Financial Advisor 44 3.26 Disclaimer 53 Section 5.23 Brokers 53 Section 5.24 Related Party Transactions 53 Section 5.25 Business Conduct 54 Section 5.26 Regulatory Matters 54 Section 5.27 Tax Treatment 54 Section 5.28 No Additional Representations 54 ARTICLE VI COVENANTS AND AGREEMENTS 55 Section 6.1 Conduct of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Company Business 44 4.2 Operation of Pending the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees Merger 55 Section 6.2 Conduct of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Business Pending the Merger 59 Section 6.3 No Solicitation by the Company 62 Section 6.4 No Solicitation by Parent 68 Section 6.5 Preparation of Joint Proxy Statement 52 5.2 Company Statement, Exchange Prospectus, Registration Statements and Prepackaged Plan 74 Section 6.6 Stockholders Meeting 75 Section 6.7 Access to Information Statement78 Section 6.8 HSR and Other Approvals 79 Section 6.9 Employee Matters 81 Section 6.10 Indemnification; Stockholder Written Consent 53 5.3 Parent StockholdersDirectorsMeeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification Officers’ Insurance 83 Section 6.11 Transaction Litigation 85 Section 6.12 Public Announcements 85 Section 6.13 Control of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Business 86 Section 6.14 Transfer Taxes 86 Section 6.15 Reasonable Best Efforts; Notification 86 Section 6.16 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 87 Section 6.17 Stock Exchange Listing and Deregistration 87 Section 6.18 Tax Matters 87 Section 6.19 Takeover Laws 88 Section 6.20 Obligations of Merger Sub 88 Section 6.21 Prepayment of Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. Credit Facility 88 Section 6.22 Senior Credit Facilities 88 Section 6.23 Exchange Offer 89 Section 6.24 Bankruptcy 92 Section 6.25 Derivative Contracts 96 Section 6.26 Transaction Expense Fee 96 ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 96 Section 7.1 Accuracy Conditions to Each Party’s Obligation to Consummate the Merger 96 Section 7.2 Additional Conditions to Obligations of Representations 66 7.2 Performance Parent and Merger Sub 97 Section 7.3 Additional Conditions to Obligations of Covenants 66 7.3 Documents 66 the Company 98 Section 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Frustration of Closing Conditions 99 ARTICLE VIII TERMINATION 99 Section 8.1 Termination 99 Section 8.2 Notice of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Termination; Effect of Termination 70 101 Section 8.3 Expenses and Other Payments 102 ARTICLE IX GENERAL PROVISIONS 104 Section 9.1 Schedule Definitions 104 Section 9.2 Survival 105 Section 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival Notices 105 Section 9.4 Rules of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Construction 106 Section 9.5 Counterparts 108 Section 9.6 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: 108 Section 9.7 Governing Law; Venue; Waiver of Jury Trial 109 Section 9.8 Severability 110 Section 9.9 Assignment 110 Section 9.10 Affiliate Liability 111 Section 9.11 Specific Performance 111 Section 9.12 Amendment 112 Section 9.13 Extension; Waiver 112 Section 9.14 Non-Recourse 112 ANNEX A Annex A-1 EXHIBIT A Exhibit A Definitions A-1 EXHIBIT B Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement EXHIBIT C Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of November 9, 2020 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSBonanza Creek Energy, INC.Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBBoron Merger Sub, INC. Inc., a Delaware corporation and a wholly owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.HighPoint Resources Corporation, a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 2 contracts

Samples: Agreement and Plan of Merger (HighPoint Resources Corp), Agreement and Plan of Merger (HighPoint Resources Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 23 6.1 Organization, Standing and Power 23 6.2 Authority; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature Breach By Agreement 23 6.3 Legal Proceedings 24 6.4 Financing 24 6.5 Stock Ownership 25 6.6 No Brokers 25 6.7 Information to be Supplied 25 ARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION 25 7.1 Affirmative Covenants of Agreement the Company 25 7.2 Negative Covenants of the Company 25 7.3 Affirmative Covenants of Parent 28 3.4 Vote Required 7.4 Adverse Changes in Condition 28 3.5 Non-Contravention; Consents 7.5 Reports 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 7.6 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Control Over Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of ParentParty’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. 28 ARTICLE 8 ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 29 8.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Approval 29 8.2 Other Offers 30 8.3 Antitrust Notification; Consents of Regulatory Approvals 57 5.5 Company Options Authorities 32 8.4 Filings with State Offices 33 8.5 Agreement as to Efforts to Consummate 33 8.6 Investigation and Company Warrants 58 5.6 Confidentiality 34 8.7 Press Releases 35 8.8 State Takeover Laws 35 8.9 Charter Provisions 35 8.10 Rights Agreement 35 8.11 Employee Benefits 60 5.7 and Contracts 36 8.12 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. 36 ARTICLE 9 CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy CONSUMMATE 38 9.1 Conditions to Obligations of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 Each Party 38 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form Conditions to Obligations of Parent Stockholder Support Agreement Exhibit C-1 Form 38 9.3 Conditions to Obligations of the Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.39 ARTICLE 10 TERMINATION 40 10.1 Termination 40 Page

Appears in 1 contract

Samples: Agreement and Plan of Merger (Indus International Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due OrganizationSection 5.01 Corporate Organization and Qualification 27 Section 5.02 Memorandum and Articles of Association 27 Section 5.03 Authority Relative to This Agreement 27 Section 5.04 Capitalization 28 Section 5.05 No Conflict; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityRequired Filings and Consents 28 Section 5.06 Operations of Parent and Merger Sub 29 Section 5.07 Absence of Litigation 29 Section 5.08 Sufficient Funds; Binding Nature Financing 29 Section 5.09 Solvency 30 Section 5.10 Ownership of Agreement 28 3.4 Vote Required 28 3.5 Company Shares 30 Section 5.11 Brokers 31 Section 5.12 Guarantee 31 Section 5.13 Certain Arrangements 31 Section 5.14 Parent Information 31 Section 5.15 Independent Investigation 31 Section 5.16 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE Reliance on Company Estimates 32 Section 5.17 No Additional Representations 32 ARTICLE VI CONDUCT OF CONTENTS (continued) 3.8 Absence BUSINESS PENDING THE MERGER Section 6.01 Conduct of Changes Business by the Company Pending the Merger 32 3.9 Section 6.02 Conduct of Business by Parent and Merger Sub Prior to the Effective Time 35 Section 6.03 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer Control of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of ParentParty’s Business 44 4.2 Operation 35 ARTICLE VII ADDITIONAL AGREEMENTS Section 7.01 Proxy Statement and Schedule 13E-3 35 Section 7.02 Company Shareholders’ Meeting 36 Section 7.03 No Solicitation of the Company’s Business 47 4.3 Transactions; Company Board Recommendation; Alternative Acquisition Agreement 37 Section 7.04 Access to Information 40 Section 7.05 Directors’ and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Officers’ Indemnification and Insurance 41 Section 7.06 Employee Protection 43 Section 7.07 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 43 Section 7.08 Reasonable Best Efforts; Further Action 44 Section 7.09 Public Announcements 44 Section 7.10 Stock Exchange Delisting 44 Section 7.11 Takeover Statute 45 Section 7.12 Resignations 45 Section 7.13 Participation in Litigation 45 Section 7.14 Financing 45 Section 7.15 Management 46 Section 7.16 Actions Taken at the Direction of Employees the CEO or Rollover Shareholder 46 ARTICLE VIII CONDITIONS TO THE MERGER Section 8.01 Conditions to the Obligations of Each Party 47 Section 8.02 Conditions to the Obligations of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 and Merger Sub 47 Section 8.03 Conditions to the Obligations of the Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification 48 Section 8.04 Frustration of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Closing Conditions 48 ARTICLE IX TERMINATION, AMENDMENT AND WAIVER Section 9.01 Termination of Certain Agreements and Rights 64 5.15 48 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 9.02 Effect of Termination 70 9.3 Expenses; Termination 50 Section 9.03 Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Expenses 50 Section 9.04 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.52 Section 9.05 Waiver 52 ARTICLE X

Appears in 1 contract

Samples: Agreement and Plan of Merger (Global-Tech Advanced Innovations Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; 29 5.01 Organization and Corporate Power 29 5.02 Authorization 29 5.03 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionViolation 30 5.04 Governmental Bodies; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN 5.05 Litigation 30 5.06 Brokerage 30 5.07 Investment Representation 30 5.08 Available Financing 31 5.09 Purpose 31 ARTICLE VI COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation COMPANY 31 6.01 Conduct of the Company’s Business 47 4.3 31 6.02 Access to Books and Investigation 49 4.4 Records 32 6.03 Regulatory Filings 33 6.04 Conditions 33 6.05 Exclusive Dealing 33 6.06 Notification 33 6.07 Requisite Stockholder Approval 34 ARTICLE VII COVENANTS OF PARENT 34 7.01 Access to Books and Records 34 7.02 Director and Officer Liability and Indemnification 34 7.03 Employee Matters 35 7.04 Regulatory Filings 36 7.05 Conditions 36 ARTICLE VIII INDEMNIFICATION 37 8.01 Survival 37 8.02 Indemnification for the Benefit of Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification Indemnified Parties 37 8.03 Indemnification for the Benefit of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Seller Indemnified Parties 39 8.04 Termination of Employees Indemnification 39 8.05 Defense of Third Party Claims 40 8.06 Determination of Loss Amount 41 8.07 Acknowledgment of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification 42 8.08 Distributions of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Holdback Funds 42 ARTICLE IX TERMINATION 44 9.01 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 44 9.02 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. 44 ARTICLE X ADDITIONAL COVENANTS 45 10.01 Tax Matters 45 10.02 280G 47 10.03 Further Assurances 48 10.04 Disclosure Generally 48 10.05 Provision Respecting Legal Representation 48 10.06 Waiver of Appraisal Rights 49 10.07 Party Stockholder Acknowledgement 49 ARTICLE XI DEFINITIONS 49 11.01 Definitions 49 11.02 Other Definitional Provisions 55 11.03 Cross Reference of Other Definitions 55 ARTICLE XII MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations 58 12.01 Press Releases and Warranties 72 10.2 Communications 58 12.02 Expenses 58 12.03 Knowledge Defined 58 12.04 Notices 58 12.05 Assignment 60 12.06 Severability 60 12.07 References 60 12.08 Construction 60 12.09 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No and Waiver 61 12.10 Complete Agreement 61 12.11 Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: 61 12.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS 61 12.13 WAIVER OF TRIAL BY JURY 62 12.14 Parent Deliveries 62 12.15 Electronic Delivery 62 12.16 Counterparts 63 12.17 Governing Law 63 12.18 Specific Performance 63 12.19 Payments Under Agreement 63 12.20 Appointment of the Stockholder Representative 64 EXHIBITS Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Executive Noncompetition Agreement Exhibit B-2 B Form of Parent Stockholder Support Agreement Certificate of Merger Exhibit C-1 C Form of Company Lock-Up Agreement Exhibit C-2 Form Letter of Parent Lock-Up Agreement Transmittal Exhibit D Company Warrants Exhibit E Post-Closing Officers Amended and Directors Exhibit F Form Restated Certificate of Company Stockholder Written Consent Exhibit G Investor Questionnaire Incorporation of the Surviving Corporation AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of December 6, 2013, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSNI Holdings I, INC.Inc., a Delaware corporation (the “Company”), JDS Uniphase Corporation, a Delaware corporation (“Parent”), SABRE MERGER SUBJade Acquisition I, INC. Inc., a Delaware corporation and wholly owned subsidiary Subsidiary of Parent (the “Merger Sub”), and ARS PHARMACEUTICALSXxxxx Xxxxx, INC.LLC, a Delaware corporation limited liability company, solely in its capacity as representative for the Company’s Stockholders (the “CompanyRepresentative”), Xxxxx Xxxxx Fund X, L.P., a Delaware limited partnership, and Xxxxx Xxxxx Fund X-A, L.P., a Delaware limited partnership (each of Xxxxx Xxxxx Fund X, L.P. and Xxxxx Xxxxx Fund X-A, L.P., a “Party Stockholder,” and collectively, the “Party Stockholders”). Certain capitalized Capitalized terms used and not otherwise defined herein have the meanings set forth in this Agreement are defined in Exhibit A.Article XI below.

Appears in 1 contract

Samples: Agreement and Plan of Merger (JDS Uniphase Corp /Ca/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due OrganizationSection 4.1 Organization and Qualification; Subsidiaries 28 Section 4.2 Authorization of Agreement; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityViolation 28 Section 4.3 Consents and Approvals 28 Section 4.4 Parent Information 29 Section 4.5 Financing 29 Article V CONDUCT PRIOR TO THE EFFECTIVE TIME Section 5.1 Conduct of Business Prior to the Effective Time 29 Section 5.2 Company Forbearances 30 Section 5.3 Third Party Proposals 31 Article VI ADDITIONAL AGREEMENTS Section 6.1 Shareholders Meeting 34 Section 6.2 Proxy Statement 35 Section 6.3 Access to Information; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionConfidentiality 35 Section 6.4 Efforts; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions Regulatory Approvals 36 3.16 Legal Proceedings; Orders Section 6.5 Public Disclosure 38 3.17 Tax Section 6.6 Cooperation 38 Section 6.7 Employee Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Section 6.8 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 39 Section 6.9 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 40 Section 6.10 Shareholder Litigation 40 Section 6.11 State Takeover Laws 40 Section 6.12 Financing 41 Section 6.13 Notification 41 Section 6.14 Resignation of Directors and Officers 42 Section 6.15 NASDAQ Compliance; Delisting 42 Section 6.16 Payment of Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. Expenses Upon Acceptance Time 42 Article VII CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 Section 7.1 Accuracy Conditions to Obligation of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Each Party to Effect 66 7.6 the Merger 42 Article VIII TERMINATION Section 8.1 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 43 Section 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; 44 Section 8.3 Expenses and Termination Fees 70 SELECTION 10. MISCELLANEOUS 45 Article IX GENERAL PROVISIONS 72 10.1 NonSection 9.1 Certain Defined Terms 47 Section 9.2 No-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: 56 Section 9.3 Specific Performance 74 10.12 56 Section 9.4 Notices 56 ii Page Section 9.5 Amendments and Waivers 57 Section 9.6 Severability 57 Section 9.7 Entire Agreement 57 Section 9.8 Assignment 57 Section 9.9 No Third Party Beneficiaries 75 10.13 58 Section 9.10 Governing Law; Exclusive Jurisdiction 58 Section 9.11 Waiver of Jury Trial 58 Section 9.12 Disclosure Letters 59 Section 9.13 Interpretation; Rules of Construction 75 Exhibits: 59 Section 9.14 Counterparts; Effectiveness 59 iii EXHIBITS Annex I Conditions to the Offer Annex II Persons Entering Into Employment Agreements Exhibit A Definitions “A” Articles of Incorporation of Surviving Corporation Exhibit B-1 Form “B” Bylaws of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Surviving Corporation iv AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of April 13, 2010 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSU.S. Renal Care, INC.Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBUrchin Merger Sub, INC. Inc., a Delaware Florida corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Dialysis Corporation of America, a Delaware Florida corporation (the “Company”). Certain Unless the context clearly indicates otherwise, capitalized terms used in this Agreement are defined in Exhibit A.Section 9.1.

Appears in 1 contract

Samples: Agreement and Plan of Merger (U.S. Renal Care Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization19 Section 4.1 Organization and Related Matters 19 Section 4.2 Authorization and Enforceability 20 Section 4.3 Capitalization 20 Section 4.4 Conflicts; Consents 20 Section 4.5 Absence of Certain Developments Section 4.6 Brokers 21 Section 4.7 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityLegal Proceedings Section 4.8 SEC Reports Section 4.9 Compliance with Laws; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Governmental Approvals 22 ARTICLE V COVENANTS 22 Section 5.1 Further Assurances Section 5.2 Public Announcements; Confidentiality Section 5.3 Non-ContraventionCompetition; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 Section 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors 24 Section 5.5 Officer and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Director Indemnification 26 ARTICLE VI INDEMNIFICATION 27 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 Parent Indemnitees Section 6.2 Stockholder Approval 65 Shareholder Indemnitees Section 6.3 Listing 65 Indemnification Procedures Section 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival Expiration of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Section 6.5 Certain Limitations Section 6.6 Exclusive Remedy Section 6.7 Treatment of Indemnification Payments Section 6.8 NO OTHER REPRESENTATIONS OR WARRANTIES 31 ARTICLE VII MISCELLANEOUS 32 Section 7.1 Definitions 32 Section 7.2 Expenses 39 Section 7.3 Submission to Jurisdiction; Consent to Service of Process 39 Section 7.4 Entire Agreement; CounterpartsAmendments and Waivers Section 7.5 Governing Law Section 7.6 Section Headings 40 Section 7.7 Notices 40 Section 7.8 Severability 41 Section 7.9 Binding Effect; Exchanges by Electronic Transmission 73 10.5 Applicable LawAssignment; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Third-Party Beneficiaries 41 Section 7.10 Counterparts 41 Section 7.11 Remedies Cumulative 41 Section 7.12 Exhibits and Schedules 41 Section 7.13 Interpretation 42 Section 7.14 Construction 42 Section 7.15 Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form 42 Section 7.16 Waiver of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Jury Trial 42 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this Agreement”) is made and entered into ), dated as of July 21September 7, 20222011, by and among SILVERBACK THERAPEUTICS, INC.FriendFinder Networks Inc., a Delaware Nevada corporation (“Parent”), SABRE MERGER SUBJGC Holdings Limited, INC. a Delaware corporation British Virgin Islands limited company and wholly a direct wholly-owned subsidiary of Parent (the “Merger Sub”), and ARS PHARMACEUTICALS, INC.BDM Global Ventures Limited, a Delaware corporation British Virgin Islands limited company (the “Company”), Global Investment Ventures LLC and Xxxxxxx X. Xxxxxxxxxx (each, a “ Founder” and collectively, the “Founders”). Certain capitalized Parent, Merger Sub, the Company and the Founders are sometimes referred to herein collectively as the “Parties” and each individually as a “Party.” Capitalized terms used herein and not otherwise defined, shall have the meaning set forth in this Agreement are defined in Exhibit A.Section 7.1.

Appears in 1 contract

Samples: Agreement and Plan of Merger (FriendFinder Networks Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 46 5.1 Organization, General Authority and Standing 47 5.2 Capital Structure 47 5.3 Parent Subsidiaries; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Equity Interests 48 5.4 Capitalization of Merger Sub; Business Conduct 49 5.5 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionExecution and Delivery; Enforceability 49 5.6 No Conflicts; Consents 28 3.6 Capitalization 29 3.7 50 5.7 SEC FilingsDocuments; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Undisclosed Liabilities 51 5.8 Information Supplied 52 5.9 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 or Events 52 5.10 Taxes 52 5.11 Labor Relations 54 5.12 Employee Benefits 54 5.13 Title to Assets 32 3.12 Real PropertyProperties; Leasehold 32 3.13 Oil and Gas Properties 56 5.14 Reserve Report 57 5.15 Material Contracts 57 5.16 Litigation 59 5.17 Compliance with Laws 59 5.18 Environmental Matters 59 5.19 Indebtedness 60 5.20 Material Customers and Material Suppliers 60 5.21 Intellectual Property 33 3.14 Agreements, Contracts 60 5.22 Insurance 61 5.23 Regulatory Matters 61 5.24 Brokers and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Other Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 61 5.25 Opinion of Financial Advisor 44 3.26 Disclaimer of 61 5.26 Related Party Transactions 62 5.27 No Other Representations or Warranties 44 SECTION 4. CERTAIN 62 ARTICLE VI COVENANTS 62 6.1 Conduct of Business by the Company 63 6.2 Conduct of Business by Parent 65 6.3 Consummation of the Merger 68 6.4 No Solicitation by Company and Company Change in Recommendation 69 6.5 No Solicitation by Parent and Parent Change in Recommendation 74 6.6 Access to Information: Confidentiality 78 6.7 Public Statements 79 6.8 Takeover Laws 80 6.9 Obligations of Merger Sub 80 6.10 Indebtedness 80 6.11 Indemnification; Directors’ and Officers’ Insurance 81 6.12 Section 16 Matters 83 6.13 Employee Matters 83 6.14 Transaction Litigation 86 6.15 Cessation of Quotation 86 6.16 Preparation of Form S-4 and Joint Proxy Statement/Prospectus 86 6.17 Company Stockholders Meeting; Parent Stockholders Meeting; Other Approvals 88 6.18 Intended Tax Treatment 90 6.19 Treatment of Company Warrants 91 6.20 Treatment of Company Registration Rights Agreement 91 6.21 Waiver of Company Change in Control Payments 92 ARTICLE VII CONDITIONS TO CONSUMMATION OF THE PARTIES 44 4.1 Operation of MERGER 92 7.1 Mutual Closing Conditions 92 7.2 Conditions to Parent’s Business 44 4.2 Operation of and Merger Sub’s Obligations to Effect the Merger 92 7.3 Conditions to the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification Obligations to Effect the Merger 93 7.4 Frustration of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Closing Conditions 95 ARTICLE VIII TERMINATION 95 8.1 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Agreement 95 8.2 Procedure Upon Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 96 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 96 8.4 Fees and Expense Reimbursement 97 ARTICLE IX MISCELLANEOUS 99 9.1 Amendment or Supplement 99 9.2 Counterparts 99 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 NonNotices 99 9.4 Assignment 100 9.5 Entire Understanding: No Third-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Party Beneficiaries 100 9.6 Severability 100 9.7 Governing Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Venue; Waiver of Jury Trial 101 9.8 No Recourse 101 9.9 Affiliate Liability 101 9.10 Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire 102 9.11 Transfer Taxes 102 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of May 5, 2019 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSMidstates Petroleum Company, INC.Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBMidstates Holdings, INC. Inc., a Delaware corporation and wholly owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Amplify Energy Corp., a Delaware corporation (the “Company” and collectively with Parent and Merger Sub, the “Parties”). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 1 contract

Samples: Agreement and Plan of Merger (Amplify Energy Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization4.1 Organization and Qualification; Subsidiaries 26 4.2 Capitalization 27 4.3 Authority 28 4.4 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityConflict 28 4.5 Required Filings and Consents 29 4.6 Permits; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization Compliance With Law 29 3.7 4.7 SEC Filings; Financial Statements 30 4.8 Internal Controls 31 4.9 State Takeover Laws 31 4.10 No Undisclosed Liabilities 32 4.11 Absence of Certain Changes or Events 32 4.12 Employee Benefit Plans 32 4.13 Labor and Other Employment Matters 33 4.14 Contracts 34 4.15 Litigation 35 4.16 Environmental Matters 35 4.17 Intellectual Property; IT Assets 36 4.18 Data Privacy and Security 37 4.19 Tax Matters 38 4.20 Insurance 39 4.21 Properties and Assets 39 4.22 Real Property 39 4.23 Related Party Transactions 40 4.24 Aircraft 40 4.25 Parent Slots and Operating Authorizations 41 4.26 Parent Airports 42 4.27 U.S. Citizen; Air Carrier 42 4.28 Ownership of Company Common Stock 42 4.29 Available Funds 42 4.30 Ownership of Merger Sub; No Prior Activities 42 4.31 Management Arrangements 42 4.32 Required Vote 42 4.33 Brokers 42 4.34 Information Supplied 43 4.35 Parent Treasury Restrictions 43 4.36 Opinion of Financial Advisor 43 4.37 No Other Representations or Warranties 43 ARTICLE 5 COVENANTS 43 5.1 Conduct of Business by the Company Pending the Closing 43 5.2 Conduct of Business by Parent Pending the Closing 47 5.3 Access to Information; Confidentiality 49 5.4 No-Shop; Acquisition Proposals 49 TABLE OF CONTENTS (continuedContinued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real PropertyPage 5.5 Registration Statement, Information Statement and Proxy Statement/Prospectus; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 ComplianceCompany Stockholder Meeting 53 5.6 Appropriate Action; PermitsConsents; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Filings 54 5.7 Certain Notices 57 5.8 Public Announcements 57 5.9 Employee Benefit Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 5.10 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 60 5.11 State Takeover Laws 61 5.12 Parent Agreement Concerning Merger Sub 61 5.13 Section 16 Matters 64 61 5.14 Company Stock Exchange Delisting; Deregistration 61 5.15 Stockholder Litigation 61 5.16 Cooperation 64 Governance Matters 61 5.17 Allocation Certificates 64 Tax Matters 62 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Convertible Notes 62

Appears in 1 contract

Samples: Agreement and Plan of Merger (Frontier Group Holdings, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization46 4.1 Organization and Power 46 4.2 Corporate Authorization 46 4.3 Governmental Authorizations; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionContravention 46 4.4 Capitalization; Consents 28 3.6 Capitalization 29 3.7 SEC Interim Operations of Merger Sub; Ownership of Company Common Stock 47 4.5 Sufficient Funds 48 4.6 Litigation 48 4.7 Information Supplied 48 4.8 Stockholder, Labor and Employee Matters 49 ARTICLE V COVENANTS 49 5.1 Conduct of Business of the Company 49 5.2 Access to Information; Confidentiality 52 5.3 No Solicitation 54 5.4 Employee Matters 58 5.5 Indemnification, Exculpation and Insurance 60 5.6 Commercially Reasonable Efforts 61 5.7 Consents; Filings; Financial Statements 30 Further Action 61 5.8 Public Announcements 63 5.9 Fees and Expenses 63 5.10 Company Financing 63 5.11 Rule 16b-3 64 5.12 Notification of Certain Matters 64 5.13 Delisting 64 5.14 Rule 14d-10 64 5.15 Takeover Laws 64 5.16 Resignation of Directors 65 5.17 Interim Operations of Merger Sub 65 5.18 Retention Matters 65 ARTICLE VI CONDITIONS 65 6.1 Conditions to Each Party’s Obligation to Effect the Merger 65 6.2 Frustration of Closing Conditions 65 ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 65 7.1 Termination by Mutual Consent 65 7.2 Termination by Either Parent or the Company 66 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Page 7.3 Termination by Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 Termination by the Company 67 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 68 7.6 Fees Following Termination 68 ARTICLE VIII MISCELLANEOUS 70 9.3 Expenses8.1 Certain Definitions 70 8.2 Interpretation 81 8.3 No Survival 83 8.4 Governing Law 83 8.5 Submission to Jurisdiction 83 8.6 WAIVER OF JURY TRIAL 83 8.7 Notices 84 8.8 Amendment 85 8.9 Extension; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 NonWaiver 85 8.10 Entire Agreement 85 8.11 No Third-Survival Party Beneficiaries 85 8.12 Severability 86 8.13 Rules of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Construction 86 8.14 Assignment 86 8.15 Specific Performance 86 8.16 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (Effectiveness 87 Annex I Conditions to the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Offer

Appears in 1 contract

Samples: Agreement and Plan of Merger (Carbon Black, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due SECTION 3.01 Organization; No , Standing and Power 13 SECTION 3.02 Parent Subsidiaries 27 3.2 Organizational Documents 27 3.3 13 SECTION 3.03 Capital Structure 14 SECTION 3.04 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionExecution and Delivery; Enforceability 15 SECTION 3.05 No Conflicts; Consents 28 3.6 Capitalization 29 3.7 SEC Filings16 SECTION 3.06 Reporting Documents; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Undisclosed Liabilities 17 SECTION 3.07 Information Supplied 18 SECTION 3.08 Absence of Certain Changes 32 3.9 No Competitive Products 32 or Events 19 SECTION 3.09 Taxes 19 SECTION 3.10 Absence of Undisclosed Liabilities 32 Employee Benefits 20 SECTION 3.11 Title to Assets 32 Labor and Employment Matters 22 SECTION 3.12 Real Property; Leasehold 32 Litigation 22 SECTION 3.13 Compliance with Applicable Laws 23 SECTION 3.14 Rights-of-Way 23 SECTION 3.15 Oil and Gas Matters 23 SECTION 3.16 Environmental Matters 25 SECTION 3.17 Contracts 26 SECTION 3.18 Derivative Transactions 27 SECTION 3.19 Properties 27 SECTION 3.20 Intellectual Property 33 3.14 Agreements, Contracts 28 SECTION 3.21 Permits 29 SECTION 3.22 Insurance 29 SECTION 3.23 Brokers’ Fees and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 Expenses 29 SECTION 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 29 SECTION 3.25 Regulatory Matters 29 SECTION 3.26 Disclaimer Related Party Transactions 30 SECTION 3.27 Parent Ownership of Other Company Common Shares 30 SECTION 3.28 Financing 30 SECTION 3.29 Solvency 31 SECTION 3.30 No Additional Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of 31 ARTICLE IV Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreementof the Company SECTION 4.01 Organization, Standing and Power 32 SECTION 4.02 Company Subsidiaries 33 SECTION 4.03 Capital Structure 33 SECTION 4.04 Authority; CounterpartsExecution and Delivery; Exchanges by Electronic Transmission 73 10.5 Enforceability 35 SECTION 4.05 No Conflicts; Consents 35 SECTION 4.06 Reporting Documents; Undisclosed Liabilities 36 SECTION 4.07 Information Supplied 38 SECTION 4.08 Absence of Certain Changes or Events 38 SECTION 4.09 Taxes 38 SECTION 4.10 Employee Benefits 40 SECTION 4.11 Labor and Employment Matters 41 SECTION 4.12 Litigation 42 SECTION 4.13 Compliance with Applicable Law; Jurisdiction 73 10.6 AttorneysLaws 42 SECTION 4.14 Rights-of-Way 42 SECTION 4.15 Oil and Gas Matters 43 SECTION 4.16 Environmental Matters 45 SECTION 4.17 Contracts 45 SECTION 4.18 Derivative Transactions 48 SECTION 4.19 Properties 48 SECTION 4.20 Intellectual Property 49 SECTION 4.21 Permits 50 SECTION 4.22 Insurance 50 SECTION 4.23 Brokers’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 and Expenses 51 SECTION 4.24 Opinion of Financial Advisor 51 SECTION 4.25 Regulatory Matters 51 SECTION 4.26 Related Party Transactions 51 SECTION 4.27 Bankruptcy 51 SECTION 4.28 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form Additional Representations 52 ARTICLE V Covenants Relating to Conduct of Business SECTION 5.01 Conduct of Business 53 SECTION 5.02 No Solicitation by Parent; Parent Board Recommendation 60 SECTION 5.03 No Solicitation by the Company; Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Board Recommendation 64 ARTICLE VI

Appears in 1 contract

Samples: Agreement and Plan of Merger (Penn Virginia Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 28 Section 5.1 Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 , Standing and Corporate Power 28 Section 5.2 Capitalization 29 Section 5.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionNoncontravention; Consents 28 3.6 Capitalization 29 3.7 Voting Requirements 30 Section 5.4 Governmental Approvals 31 Section 5.5 Parent SEC FilingsDocuments; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Undisclosed Liabilities; Internal Controls 32 Section 5.6 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Propertyor Events 33 Section 5.7 Legal Proceedings 33 Section 5.8 Compliance With Laws; Leasehold 32 3.13 Permits 34 Section 5.9 Information Supplied 34 Section 5.10 Tax Matters 35 Section 5.11 Contracts 35 Section 5.12 Parent Benefit Plans 36 Section 5.13 Environmental Matters 36 Section 5.14 Property 36 Section 5.15 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 37 Section 5.16 Opinion of Parent Financial Advisor 44 3.26 Disclaimer 38 Section 5.17 Brokers and Other Advisors 38 Section 5.18 Insurance 38 Section 5.19 Investment Company Act 38 Section 5.20 Ownership of Common Units and Class B Units 38 Section 5.21 No Other Representations or Warranties 44 SECTION 4. CERTAIN 38 ARTICLE VI ADDITIONAL COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation AND AGREEMENTS 39 Section 6.1 Preparation of the Company’s Business 47 4.3 Access Registration Statement and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 the Joint Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Equityholder Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options 39 Section 6.2 Conduct of Business 41 Section 6.3 Recommendation of Merger; No Solicitation by Parent; Etc 42 Section 6.4 Reasonable Best Efforts 46 Section 6.5 Public Announcements 48 Section 6.6 Access to Information; Confidentiality 48 Section 6.7 Indemnification and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers Insurance 48 Section 6.8 Fees and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Expenses 50 Section 6.9 Section 16 Matters 64 5.16 50 Section 6.10 Listing 50 Section 6.11 Dividends and Distributions 50 Section 6.12 GP Conflicts Committee 50 Section 6.13 Performance by Partnership GP 51 Section 6.14 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 with Debt and Equity Financing 51 Section 6.15 Tax Treatment 51 Section 6.16 Takeover Statutes 65 5.20 Stockholder 52 Section 6.17 Securityholder Litigation 65 SECTION 6. 52 ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 52 Section 7.1 Accuracy Conditions to Each Party’s Obligation to Effect the Merger 52 Section 7.2 Conditions to Obligations of Representations 66 7.2 Performance Parent and Merger Sub to Effect the Merger 53 Section 7.3 Conditions to Obligation of Covenants 66 7.3 Documents 66 the Partnership to Effect the Merger 53 Section 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Frustration of Closing Conditions 54 ARTICLE VIII TERMINATION 54 Section 8.1 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 54 Section 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 56 Section 8.3 Termination Amounts; Expenses 57 ARTICLE IX MISCELLANEOUS 59 Section 9.1 No Survival, Etc 59 Section 9.2 Amendment or Supplement 59 Section 9.3 ExpensesGP Board Consent 60 Section 9.4 Extension of Time, Waiver, Etc 60 Section 9.5 Assignment 60 Section 9.6 Counterparts 61 Section 9.7 Entire Understanding; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 No Third-Party Beneficiaries 61 Section 9.8 Governing Law; Jurisdiction; Waiver of Jury Trial 61 Section 9.9 Specific Performance 62 Section 9.10 Notices 62 Section 9.11 Severability 63 Section 9.12 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Recourse 64 iii AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of January 31, 2017 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSONEOK, INC.Inc., a Delaware an Oklahoma corporation (“Parent”), SABRE MERGER SUBNew Holdings Subsidiary, INC. LLC, a Delaware corporation limited liability company and wholly owned subsidiary a Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSONEOK Partners, INC.L.P., a Delaware corporation limited partnership (the “CompanyPartnership”), and ONEOK Partners GP, L.L.C., a Delaware limited liability company and the general partner of the Partnership (the “Partnership GP”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Article I.

Appears in 1 contract

Samples: Agreement and Plan of Merger

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Section 5.01 Corporate Organization; Capitalization 27 Section 5.02 Authority Relative to This Agreement 27 Section 5.03 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityConflict; Binding Nature Required Filings and Consents 28 Section 5.04 Sufficient Funds; Financing 28 Section 5.05 Litigation 29 Section 5.06 Parent Information 29 Section 5.07 Ownership of Agreement 28 3.4 Vote Required 28 3.5 Securities 29 Section 5.08 Operations of Merger Sub. 30 Section 5.09 Solvency. 30 Section 5.10 Limited Guarantee 30 Section 5.11 Certain Arrangements 30 Section 5.12 Independent Investigation 31 Section 5.13 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Reliance on Company Estimates 31 Section 5.14 Brokers 31 Section 5.15 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Additional Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS 31 ARTICLE VI CONDUCT OF BUSINESS PENDING THE PARTIES 44 4.1 Operation MERGER Section 6.01 Conduct of Parent’s Business 44 4.2 Operation by the Company Pending the Merger 31 Section 6.02 Conduct of Business by Parent and Merger Sub Pending the Company’s Business 47 4.3 Merger 34 ARTICLE VII ADDITIONAL AGREEMENTS Section 7.01 Proxy Statement and Schedule 13E-3 34 Section 7.02 Stockholders’ Meeting 35 Section 7.03 Access to Information 36 Section 7.04 Competing Transactions 37 Section 7.05 Directors’ and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Officers’ Indemnification and Insurance 41 Section 7.06 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 43 Section 7.07 Financing. 44 Section 7.08 Further Action; Reasonable Best Efforts 46 Section 7.09 Obligations of Employees Merger Sub 47 Section 7.10 Participation in Litigation 47 Section 7.11 Resignations 47 Section 7.12 Public Announcements 47 Section 7.13 Stock Exchange Delisting 48 Section 7.14 Takeover Statutes 48 Section 7.15 Rule 16b-3 48 Section 7.16 Expenses 48 Section 7.17 Management 48 Section 7.18 Actions Taken at Direction of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF or CEO 48 Section 7.19 Restrictions on Transfer 49 ARTICLE VIII CONDITIONS TO THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification MERGER Section 8.01 Conditions to the Obligations of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Each Party 49 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form 8.02 Conditions to the Obligations of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Sub 49

Appears in 1 contract

Samples: Agreement and Plan of Merger (Synutra International, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 20 5.1 Organization, Qualification, Standing and Power; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority20 5.2 Parent Capitalization 21 5.3 Authority Relative to this Agreement 21 5.4 Validity of Parent Merger Shares 22 5.5 Governmental Consents and Filings 22 5.6 Financial Statements 22 5.8 Compliance with Laws and Other Instruments; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. Contravention 23 5.9 Disclosure 23 ARTICLE VI ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 23 6.1 Amendment to Stockholders Agreement 23 6.2 Legal Conditions to the Merger 23 6.3 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 24 6.4 Expenses 24 6.5 Additional Agreements 62 5.9 24 6.6 Public Announcement 62 5.10 Listing 63 5.11 Announcements 24 6.7 Confidentiality 25 6.8 Continuity of Business Enterprise 25 6.9 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination Free Merger 25 6.10 Celsys Net Working Capital 25 6.11 Sponsored Research Agreement 25 ARTICLE VII CLOSING DELIVERABLES 26 7.1 Conditions to Each Party’s Obligation to Effect the Merger 26 ARTICLE VIII INDEMNIFICATION 27 8.1 Indemnification Relating to Agreement 27 8.2 Third Party Claims 28 8.3 Tax Contests 29 8.4 Limitations 29 8.5 Binding Effect 30 8.6 Time Limit 30 8.7 Sole Remedy 30 8.8 Distribution of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Escrow Account 30 ARTICLE IX MISCELLANEOUS 31 9.1 Entire Agreement 31 9.3 Governing Law; Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-to Jurisdiction 31 9.4 Notices 32 9.5 Severability 33 9.6 Survival of Representations and Warranties 72 10.2 33 9.7 Assignment 33 9.8 Counterparts 33 9.9 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 33 9.10 Interpretation 33 9.11 Knowledge 33 9.12 Transfer, Sales, Documentary, Stamp and Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Similar Taxes 33 EXHIBITS EXHIBIT 1.1(A) — Certificate of Merger EXHIBIT 1.1(B) — Articles of Merger EXHIBIT 2.2(A) — Escrow Agreement EXHIBIT 2.2(B) — Escrow Shares EXHIBIT 2.3 — Form of Company Stockholder Support Surrender Certificate Exhibit 5.2(B) — Parent Second Amended and Restated Certificate of Incorporation EXHIBIT 6.1 — Amendment to Stockholders Agreement Exhibit B-2 Form of Parent Stockholder Support EXHIBIT 7.1(C) — Ladisch Employment Agreement Exhibit C-1 Form of Company Lock-Up EXHIBIT 7.1(E) — Purdue License Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of October 26, 2007 (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC.Mascoma Corporation, a Delaware corporation (“Parent”), SABRE MERGER SUB; MASCOMA SUB I, INC. ., a Delaware corporation and wholly a wholly-owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS; CELSYS BIOFUELS, INC., a Delaware an Indiana corporation (“Celsys”); and the undersigned stockholders of Celsys (the “CompanyStockholders”). Certain capitalized terms used Intending to be legally bound, and in this Agreement are defined in Exhibit A.consideration of the mutual representations, warranties, covenants and agreements contained herein, Parent, Merger Sub, Celsys and the Stockholders agree as follows:

Appears in 1 contract

Samples: Agreement and Plan of Merger (Mascoma Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 37 Section 4.1 Organization and Power 37 Section 4.2 Foreign Qualifications 37 Section 4.3 Corporate Authorization 37 Section 4.4 Governmental Authorizations 37 Section 4.5 Non-ContraventionContravention 38 Section 4.6 Capitalization; Consents 28 3.6 Capitalization 29 3.7 SEC Interim Operations of Merger Sub; Ownership of Common Stock 38 Section 4.7 Sufficient Funds 39 Section 4.8 Guarantee 39 Section 4.9 Absence of Arrangements with Management and Principal Stockholders 39 Section 4.10 Litigation 39 Section 4.11 Brokers 40 Section 4.12 Independent Investigation 40 ARTICLE V COVENANTS 40 Section 5.1 Conduct of Business of the Company 40 Section 5.2 Conduct of Parent and Merger Sub 43 Section 5.3 Access to Information; Confidentiality 44 Section 5.4 No Solicitation 44 Section 5.5 Employees; Benefit Plans 45 Section 5.6 Directors’ and Officers’ Indemnification and Related Insurance 49 Section 5.7 Reasonable Best Efforts 51 Section 5.8 Consents; Filings; Financial Statements 30 Further Action 51 Section 5.9 Public Announcements 53 Section 5.10 Fees and Expenses 53 Section 5.11 Financing 54 Section 5.12 Rule 16b-3 54 Section 5.13 Notification of Certain Matters 55 Section 5.14 Delisting 55 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting Page Section 5.15 Rule 14d-10 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 Takeover Laws 55 Section 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 56 ARTICLE VI CONDITIONS 56 Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger 56 Section 6.2 Frustration of Closing Conditions 56 ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 56 Section 7.1 Termination by Mutual Consent 56 Section 7.2 Termination by Either Parent or the Company 56 Section 7.3 Termination by Parent 57 Section 7.4 Termination by the Company 57 Section 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 58 Section 7.6 Fees Following Termination 58 ARTICLE VIII MISCELLANEOUS 60 Section 8.1 Certain Definitions 60 Section 8.2 Interpretation 66 Section 8.3 No Survival 67 Section 8.4 Governing Law 67 Section 8.5 Submission to Jurisdiction 67 Section 8.6 WAIVER OF JURY TRIAL 68 Section 8.7 Notices 68 Section 8.8 Amendment 69 Section 8.9 Extension; Waiver 70 9.3 ExpensesSection 8.10 Entire Agreement 70 Section 8.11 No Third-Party Beneficiaries 70 Section 8.12 Severability 70 Section 8.13 Rules of Construction 70 Section 8.14 Assignment 71 Section 8.15 Specific Performance 71 Section 8.16 Counterparts; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS Effectiveness 72 10.1 Section 8.17 Non-Survival of Representations and Warranties Recourse 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (Annex I Conditions to the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Offer

Appears in 1 contract

Samples: Agreement and Plan of Merger (Papa Murphy's Holdings, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 38 5.1 Organization, Standing and Power 39 5.2 Capitalization 39 5.3 Issuance of Parent Common Stock 39 5.4 Subsidiaries 39 5.5 Australian Subsidiaries 39 5.6 Authority; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC FilingsConflicts 40 5.7 Information Statement; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 41 5.8 Litigation 41 5.9 Absence of Certain Changes 32 3.9 or Events 41 5.10 Ownership of Merger Sub; No Competitive Products 32 3.10 Absence Prior Activities 42 5.11 Brokers or Finders 42 5.12 Affiliated Transactions and Certain Other Agreements 42 ARTICLE VI. COVENANTS RELATING TO CONDUCT OF BUSINESS 42 6.1 Covenants of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 the Company 42 6.2 No Solicitation 45 6.3 Advice of Changes 45 6.4 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental 46 6.5 Reorganization Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 48 6.6 Terminations 48 6.7 Stockholder Consents 48 6.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued401(k) SECTION 5Plan 49 ARTICLE VII. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 49 7.1 Private Placement and Registration Rights 49 7.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 51 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Approval 51 7.4 Access to Information 52 7.5 Assistance with Financial Statements; Accountant Letter 52 7.6 Approvals and Consents; Cooperation 52 7.7 Fees and Expenses 53 7.8 Public Announcements 54 7.9 ASX Filings 54 7.10 Indemnification 54 7.11 Tax Audit 55 7.12 Further Assurances 56 7.13 Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Affiliates 56

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Peplin Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization31 6.1 Organization and Power 31 6.2 Authorization 32 6.3 Parent Stock 32 6.4 Absence of Conflicts 32 6.5 Governmental Authorities and Consents 32 6.6 Litigation 33 6.7 Brokerage 33 6.8 SEC Reports 33 ARTICLE 7 ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING 33 7.1 Indemnification 33 7.2 Mutual Assistance 38 7.3 Confidentiality 38 7.4 Expenses 38 7.5 Further Transfers 39 7.6 Transfer Taxes; Recording Charges 39 7.7 Directors and Officers Insurance 39 7.8 Release 40 7.9 Confidential Information 40 7.10 Non-Solicitation 40 ARTICLE 8 MISCELLANEOUS 41 8.1 Amendment and Waiver 41 8.2 Notices 41 8.3 Assignment 42 8.4 Severability 42 8.5 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature Strict Construction 42 8.6 Captions 43 8.7 No Third-Party Beneficiaries 43 8.8 Complete Agreement 43 8.9 Counterparts 43 8.10 Governing Law and Jurisdiction 43 8.11 Waiver of Jury Trial 43 8.12 Specific Performance 43 8.13 Sellers’ Representative 44 8.14 Public Announcements 46 ANNEX 1 DEFINITIONS A-1 LIST OF EXHIBITS AND SCHEDULES Exhibits Exhibit A Form of Agreement 28 3.4 Vote Required 28 3.5 Nonof Merger Exhibit B-1 Letter of Transmittal Exhibit B-2 Option Cancellation Agreement Exhibit B-3 Warrant Cancellation Agreement Exhibit B-4 Management Incentive Acknowledgment and Release Exhibit C Working Capital Schedule Exhibit D Distribution Waterfall Exhibit E Escrow Agreement Exhibit F Lock-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Up Letter Exhibit G Exchange Agent Agreement Exhibit H Registration Rights Agreement Exhibit I Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation Company’s Counsel Exhibit J Opinion of Parent’s Business 44 4.2 Operation of the Company’s Business 47 Counsel Schedules Referenced in: Governmental Licenses Schedule Sections 1.1 and 4.11 Repaid Indebtedness Schedule Section 2.9 Company Transaction Expenses Schedule Section 2.9 Management Incentive Payments Schedule Section 2.9 Corporate Organization Schedule Section 4.1 Capitalization Schedule Sections 4.3 Access and Investigation 49 5.6 Contracts Schedule Sections 4.9(a) and (b) Material Restrictions Schedule Section 4.4 Parent Non-Solicitation 50 Financial Statements Schedule Section 4.5 Company Non-Solicitation 51 Indebtedness Schedule Section 4.5 Developments Schedule Section 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Leased Real Property Schedule Sections 4.7(b) and (c) Intellectual Property Schedule Sections 4.10(a), (b), (c), (e), (f) and (i) Litigation Schedule Section 4.12 Compliance Schedule Section 4.13 Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Schedule Section 4.14 Employee Benefits 60 5.7 Indemnification of Officers Schedule Sections 4.15(a), (c), (g) Taxes Schedule Sections 4.16(b) Brokerage Schedule Sections 4.17 and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax 5.4 Affiliate Transactions Schedule Section 4.18 Environmental Matters 63 5.12 Legends 63 5.13 Directors Schedule Section 4.20 Insurance Schedule Section 4.21 Customers and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Suppliers Schedule Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No 4.26 Parent Material Adverse Effect 68 8.5 Restrictions Schedule Section 6.4 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Brokerage Schedule Section 6.7 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21October 10, 20222011, by and among SILVERBACK THERAPEUTICSQumu, INC.Inc., a Delaware California corporation (the “Company”), Quick Acquisition Corp., a California corporation (“Merger Sub”), Rimage Corporation, a Minnesota corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Shareholder Representative Services LLC, a Delaware corporation Colorado limited liability company, solely in its capacity as Sellers’ Representative (as defined in Section 8.13), and the other Persons whose names are set forth on the signature pages hereto and are designated thereon as the Major Holders (the “CompanyMajor Holders”). Certain capitalized Capitalized terms used in this Agreement are defined without definition shall have the respective meanings given to such terms in Exhibit A.Article 1 hereof.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Rimage Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 24 3.1 Subsidiaries; Due Organization; No Subsidiaries 27 Organization 24 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 24 3.3 Capitalization 25 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 26 3.5 Absence of Undisclosed Liabilities 32 3.11 28 3.6 Absence of Changes 28 3.7 Title to Assets 32 3.12 28 3.8 Loans 29 3.9 Equipment; Real Property; Leasehold 32 3.13 29 3.10 Intellectual Property 29 3.11 Contracts and Commitments; No Default 32 3.12 Compliance with Legal Requirements 33 3.13 Governmental Authorizations 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 34 3.15 Employee and Labor Matters; Benefit Plans 40 3.19 35 3.16 Environmental Matters 43 36 3.17 Insurance 37 3.18 Legal Proceedings; Orders 37 3.19 No Vote Required 38 3.20 Transactions with Affiliates 44 Non-Contravention; Consents 38 3.21 Insurance 44 Disclosure 39 3.22 No Financial Advisors 44 Merger Sub 39 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion 39 3.24 No Ownership of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION Company Common Stock 40 Article 4. CERTAIN COVENANTS OF THE PARTIES 44 40 4.1 Operation of Parent’s Business 44 Access and Investigation 40 4.2 Operation of the Company’s Business 47 of the Company Entities 40 4.3 Access and Investigation 49 Operation of the Business of the Parent Entities 43 4.4 Parent Non-No Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 46 Article 5. ADDITIONAL AGREEMENTS COVENANTS OF THE PARTIES 52 49 5.1 Registration Statement; Proxy Statement 52 Statement/Prospectus 49 5.2 Company Information Statement; Stockholder Written Consent 53 Shareholders’ Meeting 50 5.3 Parent Stockholders’ Meeting 55 Approval 52 5.4 Regulatory Approvals 57 Derivative Securities; Benefit Plans 52 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 52 5.6 Regulatory Approvals and Related Matters 53 5.7 Disclosure 54 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination 55 5.9 Obligations of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Sub 55

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (Wireless Ronin Technologies Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 57 Section 7.1 Due Organization, Good Standing and Power 57 Section 7.2 Authorization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityNoncontravention 57 Section 7.3 Consents and Approvals 58 Section 7.4 Compliance with Laws 59 Section 7.5 Litigation 59 Section 7.6 Financing 60 Section 7.7 Solvency 60 Section 7.8 Absence of Certain Agreements 60 Section 7.9 Interests in Competitors 60 Section 7.10 Operations of Parent and Merger Sub 61 Section 7.11 Information in Proxy Statement 61 Section 7.12 Ownership of Common Shares 61 Section 7.13 Broker’s or Finder’s Fees 61 Section 7.14 Legal Impediments 61 Section 7.15 Acknowledgment by Parent and Merger Sub; Binding Nature Company’s Liability 61 Section 7.16 Exclusivity of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionRepresentations 63 ARTICLE VIII COVENANTS 63 Section 8.1 Access to Information Concerning Properties and Records 63 Section 8.2 Confidentiality 64 Section 8.3 Conduct of Business by the Company and MIC Pending the Closing 64 Section 8.4 Reasonable Best Efforts 69 Section 8.5 Regulatory Approvals; Consents 28 3.6 Capitalization 29 3.7 SEC Filings69 Section 8.6 Employee Matters 73 Section 8.7 Indemnity; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real PropertyDirectors’ and Officers’ Insurance; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Fiduciary and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 74 Section 8.8 Proxy Statement 76 Section 8.9 MIC Stockholders’ Meeting 77 Section 8.10 Alternative Transaction Proposals 78 Section 8.11 Public Announcements 80 Section 8.12 Transfer Taxes 81 Section 8.13 Merger Sub 81 Section 8.14 State Takeover Laws 81 Section 8.15 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 81 Section 8.16 Right to MIC Marks 82 Section 8.17 Financing 82 Section 8.18 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 84 Section 8.19 Section 16 84 Section 8.20 Stock Exchange De-listing 85 Section 8.21 Transaction Litigation 85 Section 8.22 Special Unit Redemption 85 Section 8.23 Waiver 85 Section 8.24 No Further Obligation 86 Section 8.25 Termination of Certain Agreements Services and Contracts 86 Section 8.26 Company Transaction Expenses 86 Section 8.27 Manager Payments 86 Section 8.28 MIC Indemnity 86 Section 8.29 Manager Release 86 Section 8.30 Enforcement of Rights 64 5.15 87 Section 16 8.31 FERC Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. 87 ARTICLE IX CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy 87 Section 9.1 Conditions to the Obligations of Representations 66 7.2 Performance the Company, Parent and Merger Sub 87 Section 9.2 Conditions to the Obligations of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No the Company Material Adverse Effect 66 7.6 88 Section 9.3 Conditions to the Obligations of Parent and Merger Sub 88 Section 9.4 Frustration of Closing Conditions 90 ARTICLE X TERMINATION 90 Section 10.1 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 90 Section 10.2 Effect of Termination 70 9.3 Expenses; 92 Section 10.3 Termination Fees 70 SELECTION 10. and Limitations on Liability 92 ARTICLE XI MISCELLANEOUS PROVISIONS 72 10.1 Non-95 Section 11.1 Survival of Representations Representations, Warranties and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Agreements 95 Section 11.2 Notices 95 Section 11.3 Rules of Construction; Interpretation 97 Section 11.4 Entire AgreementAgreement 98 Section 11.5 Binding Effect; CounterpartsBenefit; Exchanges by Electronic Transmission 73 10.5 Assignment 98 Section 11.6 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Dispute Resolution 98 Section 11.7 Waiver of Jury Trial 99 Section 11.8 Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made Expenses 99 Section 11.9 Amendment and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Modification 99

Appears in 1 contract

Samples: Agreement and Plan of Merger (Macquarie Infrastructure Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; 33 4.1 Organization and Good Standing 33 4.2 Authorization and Enforceability 33 4.3 Required Governmental Consents 33 4.4 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature Conflicts 34 4.5 No “Interested Stockholder” Status 34 4.6 No Litigation 34 4.7 Financing 34 4.8 Acknowledgment by Parent and Merger Sub 36 ARTICLE V CONDUCT OF COMPANY BUSINESS 36 5.1 Conduct of Agreement 28 3.4 Vote Required 28 3.5 NonCompany Business 36 5.2 Restrictions on Company Operations 36 5.3 No Control 39 ARTICLE VI NON-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE SOLICITATION OF CONTENTS (continued) 3.8 Absence ACQUISITION PROPOSALS 39 6.1 Termination of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Discussions 39 6.2 Non-Solicitation 50 4.5 39 6.3 Notice and Information 41 ARTICLE VII ADDITIONAL COVENANTS AND AGREEMENTS 42 7.1 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Approval 42 7.2 Regulatory Approvals 47 7.3 Financing 49 7.4 Efforts to Close 55 7.5 Access to the Company 56 7.6 Notice of Breach 57 5.5 Company Options and Company Warrants 7.7 Confidentiality 57 7.8 Public Disclosure 57 7.9 Transaction Litigation 57 7.10 Section 16(b) Exemption 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 7.11 Directors and Officers Exculpation, Indemnification and Insurance 58 7.12 Employee Matters 61 7.13 Obligations of Merger Sub 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 7.14 Parent Vote 63 7.15 Delisting 63 7.16 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS 63 ARTICLE VIII TERMINATION OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy AGREEMENT 64 8.1 Termination 64 8.2 Notice of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; 67 8.4 Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.67

Appears in 1 contract

Samples: Merger Agreement (Coherent Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization37 Section 5.01 Corporate Organization 37 Section 5.02 Authority Relative to This Agreement 37 Section 5.03 No Conflict; Required Filings and Consents 38 Section 5.04 Financing 38 Section 5.05 Litigation 38 Section 5.06 Investigation; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityAdditional Representations; Binding Nature No Reliance, etc. 39 Section 5.07 Brokers 39 ARTICLE VI. CONDUCT OF BUSINESS PENDING THE MERGER 39 Section 6.01 Conduct of Agreement 28 3.4 Vote Required 28 3.5 Non-ContraventionBusiness by the Company Pending the Merger 39 Section 6.02 No Control 42 ARTICLE VII. ADDITIONAL AGREEMENTS 42 Section 7.01 Shareholder Approvals 42 Section 7.02 Access to Information; Consents 28 3.6 Capitalization 29 3.7 SEC FilingsConfidentiality; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence 42 Section 7.03 No Solicitation of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Transactions 42 Section 7.04 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Benefits Matters 43 3.20 Transactions with Affiliates 44 3.21 Section 7.05 Directors’ and Officers’ Indemnification and Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Section 7.06 Notification of Certain Matters 45 Section 7.07 Further Action; Reasonable Efforts 46 Section 7.08 Obligations of Merger Sub 48 Section 7.09 Public Announcements 48 Section 7.10 Tax Matters 48 Section 7.11 Payoff Letters 50 ARTICLE VIII. CONDITIONS TO THE MERGER 51 4.7 Potentially Transferable Assets 52 4.8 Termination Section 8.01 Conditions to the Obligations of Employees Parent, Merger Sub and the Company 51 Section 8.02 Conditions to the Obligations of the Company 51 Section 8.03 Conditions to the Obligations of Parent and Merger Sub 52 TABLE OF CONTENTS (continued) SECTION 5ARTICLE IX. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent TERMINATION, AMENDMENT AND WAIVER 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Section 9.01 Termination of Certain Agreements and Rights 64 5.15 53 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 9.02 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 1054 Section 9.03 Amendment and Waiver 55 ARTICLE X. SURVIVAL, INDEMNIFICATION AND ESCROW 55 Section 10.01 Survival 55 Section 10.02 Indemnification and Escrow Arrangements 55 ARTICLE XI. MISCELLANEOUS GENERAL PROVISIONS 72 10.1 Non-Survival 61 Section 11.01 Actions and Liability of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 the Securityholder Agent 61 Section 11.02 Notices 61 Section 11.03 Severability 63 Section 11.04 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Assignment 63 Page Section 11.05 Third Party Beneficiaries 63 Section 11.06 Specific Performance 63 Section 11.07 Governing Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 63 Section 11.08 Waiver of Jury Trial 64 Section 11.09 Headings; Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers 64 Section 11.10 Counterparts 64 Section 11.11 Costs and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Expenses 64 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION This Agreement and Plan of Merger, dated as of January 10, 2010 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSDIAGNOSTIC HYBRIDS, INC., an Ohio corporation (the “Company”), FAIRWAY ACQUISITION CORPORATION, an Ohio corporation (“Merger Sub”), QUIDEL CORPORATION, a Delaware corporation (“Parent”)) and Xxxxx X. Xxxxxx, SABRE MERGER SUBPh.D., INC. a Delaware corporation and wholly owned subsidiary solely for the purpose of Parent (“Merger Sub”)serving, and ARS PHARMACEUTICALSsolely in his capacity, INCas Securityholder Agent (as hereinafter defined)., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Quidel Corp /De/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 33 5.1 Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Good Standing 33 5.2 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Execution and Delivery; Enforceability 33 5.3 Non-Contravention; Contravention 34 5.4 Consents 28 3.6 and Approvals 34 5.5 Merger Consideration 34 5.6 Litigation and Claims 34 5.7 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence 34 5.8 No Finder 35 Article VI. ACTION PRIOR TO THE CLOSING DATE 35 6.1 Conduct of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments Business. 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 6.2 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 38 6.3 Access 38 6.4 Standstill 39 6.5 Monthly Reports 39 6.6 Notice of Employees Litigation 39 6.7 Fulfillment of Parent 52 TABLE OF CONTENTS (continued) SECTION 5Conditions to Parent’s Obligations 39 6.8 Fulfillment of Conditions to Company’s Obligations 40 6.9 Company Stockholder Approval. ADDITIONAL 40 6.10 Governmental Consents. 40 6.11 Third Party Consents 40 6.12 Publicity 41 Article VII. OTHER AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 41 7.1 Confidentiality. 41 7.2 Further Assurances 41 7.3 Conveyance Taxes 41 7.4 Other Related Transactions 42 7.5 Pre-Closing Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6Returns 42 Article VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of 42 8.1 Representations 66 7.2 and Warranties 42 ii 8.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 42 8.3 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 42 8.4 Certificates 43 8.5 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 Injunction 43 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Government Approvals 43 8.7 Merger 43 8.8 Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form Consents 43 8.9 Resignations 43 8.10 Releases 43 8.11 Liens 43 8.12 Change in the Law 43 8.13 Escrow Agreements 44 8.14 Consulting Agreement 44 8.15 Noncompetition Agreements 44 8.16 Shareholder Agreement 44 8.17 Certificates and Instruments of Conveyance 44 8.18 Investment Representation Letter 44 8.19 Employment Agreements 44 8.20 Indebtedness 44 8.21 Financing 44 8.22 Good Standing 44 8.23 Insurance 45 8.24 Company Stockholder Support Agreement Exhibit B-2 Form Benefit Plans 45 8.25 Opinion of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Counsel 45

Appears in 1 contract

Samples: Agreement and Plan of Merger (United Benefits & Pension Services, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 31 3.1 Due Organization; No Subsidiaries 27 31 3.2 Organizational Documents 27 32 3.3 Authority; Binding Nature of Agreement 28 32 3.4 Vote Required 28 32 3.5 Non-Contravention; Consents 28 32 3.6 Capitalization 29 33 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 35 3.8 Absence of Changes 32 36 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 36 3.10 Title to Assets 32 3.12 36 3.11 Real Property; Leasehold 32 3.13 37 3.12 Intellectual Property 33 3.14 37 Page 3.13 Agreements, Contracts and Commitments 35 3.15 39 3.14 Compliance; Permits; Restrictions 36 3.16 41 3.15 Legal Proceedings; Orders 38 3.17 43 3.16 Tax Matters 38 3.18 43 3.17 Employee and Labor Matters; Benefit Plans 40 3.19 Plans. 45 3.18 Environmental Matters 43 3.20 48 3.19 Transactions with Affiliates 44 48 3.20 Insurance 48 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 49 3.22 Anti-Bribery 44 3.24 49 3.23 Valid Issuance 44 3.25 49 3.24 Opinion of Financial Advisor 44 3.26 49 3.25 Disclaimer of Other Representations or Warranties 44 49 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 49 4.1 Operation of Parent’s Business 44 49 4.2 Operation of the Company’s Business 47 51 4.3 Access and Investigation 49 54 4.4 Parent Non-Solicitation 50 54 4.5 Company Non-Solicitation 51 55 4.6 Notification of Certain Matters 51 56 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) 56 SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 57 5.1 Proxy Statement 52 57 5.2 Company Information Statement; Stockholder Written Consent 53 58 5.3 Parent Stockholders’ Meeting 55 59 5.4 Regulatory Approvals 57 61 5.5 Company Options and Company Warrants 58 62 5.6 Employee Benefits 60 Benefits; Parent Employees 63 5.7 Indemnification of Officers and Directors 60 64 5.8 Additional Agreements 62 65 5.9 Public Announcement 62 65 5.10 Listing 63 66 5.11 Tax Matters 63 66 5.12 Legends 63 67 5.13 Directors and Officers 63 67 5.14 Termination of Certain Agreements and Rights 64 67 5.15 Section 16 Matters 64 67 5.16 Cooperation 64 67 5.17 Allocation Certificates 64 67 5.18 Company Financial Statements 64 68 5.19 Takeover Statutes 65 68 5.20 Stockholder Litigation 65 68 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 69 6.1 No Restraints 65 69 6.2 Stockholder Approval 65 69 6.3 Listing 65 69 6.4 Government Governmental Approvals 65 69 6.5 Net Cash Determination 66 69 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 69 7.1 Accuracy of Representations 66 69 Page 7.2 Performance of Covenants 66 69 7.3 Documents 66 70 7.4 FIRPTA Certificate 66 70 7.5 No Company Material Adverse Effect 66 70 7.6 Termination of Investor Agreements 67 70 7.7 Accredited Investors 67 70 7.8 Company Stockholder Written Consent 67 70 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 70 SECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 70 8.1 Accuracy of Representations 67 70 8.2 Performance of Covenants 67 71 8.3 Documents 68 71 8.4 No Parent Material Adverse Effect 68 71 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 71 SECTION 9. TERMINATION 68 71 9.1 Termination 68 71 9.2 Effect of Termination 70 73 9.3 Expenses; Termination Fees 70 SELECTION 73 SECTION 10. MISCELLANEOUS PROVISIONS 72 75 10.1 Non-Survival of Representations and Warranties 72 75 10.2 Amendment 72 75 10.3 Waiver. 72 Waiver 75 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 76 10.5 Applicable Law; Jurisdiction 73 76 10.6 Attorneys’ Fees 73 76 10.7 Assignability 73 76 10.8 Notices 73 76 10.9 Cooperation 74 77 10.10 Severability 74 77 10.11 Other Remedies: ; Specific Performance 74 77 10.12 No Third Party Beneficiaries 75 78 10.13 Construction 75 78 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 C Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Securities Purchase Agreement Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Exhibit H Parent 2023 Equity Incentive Plan Exhibit I Parent 2023 Employee Stock Purchase Plan Schedules: Schedule I Parent Net Cash Schedule II Parent Allocation Percentage AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July November 21, 2022, by and among SILVERBACK THERAPEUTICSGRAYBUG VISION, INC., a Delaware corporation (“Parent”), SABRE CAMARO MERGER SUB, INC. ., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSCALCIMEDICA, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 1 contract

Samples: Support Agreement (CalciMedica, Inc. /DE/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Section 4.1 Corporate Existence and Power 39 Section 4.2 Corporate Authorization 40 Section 4.3 Governmental Authorization 40 Section 4.4 Non-Contravention; Consents 28 3.6 Contravention 40 Section 4.5 Capitalization 29 3.7 41 Section 4.6 Subsidiaries 41 Section 4.7 SEC Filings; Filings and the Xxxxxxxx-Xxxxx Act 42 Section 4.8 Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 43 Section 4.9 Information Supplied 43 Section 4.10 Financing 43 Section 4.11 Availability of Escrowed Funds 44 Section 4.12 No Operations 44 Section 4.13 Absence of Certain Changes 32 3.9 44 Section 4.14 No Competitive Products 32 3.10 Undisclosed Material Liabilities 45 Section 4.15 Compliance with Laws and Court Orders; Governmental Authorizations 45 Section 4.16 Litigation 45 Section 4.17 Share Ownership 45 Section 4.18 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Certain Agreements 46 Section 4.19 Tax Matters 38 3.18 Employee 46 Section 4.20 Related Party Transactions 47 Section 4.21 Finders’ Fee, etc. 47 Section 4.22 Captive Insurance Company 47 Section 4.23 Acknowledgment and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 Representations by Parent and Merger Sub 48 Section 4.24 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Additional Representations or Warranties 44 SECTION 4. CERTAIN 48 ARTICLE V COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation COMPANY Section 5.1 Conduct of the Company’s Business 47 4.3 Access and Investigation Company 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation Section 5.2 Related Party Contracts 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS ARTICLE VI COVENANTS OF PARENT AND MERGER SUB 66 7.1 Accuracy Section 6.1 Conduct of Representations 66 7.2 Performance Parent 51 Section 6.2 Obligations of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE Merger Sub 53 Section 6.3 Director and Officer Indemnification 53 Section 6.4 Employee Matters 55 ARTICLE VII COVENANTS OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF PARENT AND THE COMPANY Section 7.1 Efforts 56 Section 7.2 Preparation of SEC Documents; Stockholders’ Meetings 58 Page Section 7.3 No Solicitation by the Company 60 Section 7.4 No Solicitation by Parent 62 Section 7.5 Financing 63 Section 7.6 Treatment of Existing Indebtedness of the Company 67 Section 7.7 Public Announcements 68 Section 7.8 Notices of Certain Events 68 Section 7.9 Access to Information 69 Section 7.10 Section 16 Matters 69 Section 7.11 Stock Exchange Listing 69 Section 7.12 Stockholder Litigation 69 Section 7.13 Takeover Statutes 70 Section 7.14 Tax Matters 70 ARTICLE VIII CONDITIONS TO THE MERGER Section 8.1 Accuracy Conditions to Obligations of Representations 67 Each Party 70 Section 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form Conditions to Obligations of Parent Stockholder Support Agreement Exhibit C-1 Form and Merger Sub 71 Section 8.3 Conditions to Obligations of the Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.71 ARTICLE IX

Appears in 1 contract

Samples: Agreement and Plan of Merger (Wmih Corp.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Section 4.1 Qualification; Organization, Subsidiaries, etc. 22 Section 4.2 Capital Stock 23 Section 4.3 Corporate Authority Relative to This Agreement; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Violation 24 Section 4.4 Reports and Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 25 Section 4.5 Internal Controls and Procedures 26 Section 4.6 No Undisclosed Liabilities 26 Section 4.7 Compliance with Law; Permits 26 Section 4.8 Environmental Laws and Regulations 27 Section 4.9 Employee Benefit Plans 27 Section 4.10 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Propertyor Events 28 Section 4.11 Investigations; Leasehold 32 3.13 Litigation 29 Section 4.12 Information Supplied 29 Section 4.13 Tax Matters 29 Section 4.14 Employment and Labor Matters 30 Section 4.15 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance30 Section 4.16 Real Property 31 Section 4.17 Required Vote of Parent Stockholders; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Merger Sub Approval 32 Section 4.18 Opinion of Financial Advisor 44 3.26 Disclaimer 33 Section 4.19 Material Contracts 33 Section 4.20 Finders or Brokers 33 Section 4.21 Lack of Other Ownership of Company Common Stock 34 Section 4.22 Insurance 34 Section 4.23 Tax Treatment 34 Section 4.24 Rights Plan 34 Section 4.25 No Additional Representations or Warranties 44 SECTION 4. CERTAIN 34 ARTICLE V COVENANTS OF THE PARTIES 44 4.1 Operation AND AGREEMENTS Section 5.1 Conduct of Parent’s Business 44 4.2 Operation by the Company 35 Section 5.2 Conduct of the Company’s Business 47 4.3 Access and by Parent 39 Section 5.3 Investigation 49 4.4 Parent 41 Section 5.4 Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement41 Section 5.5 Filings; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Other Actions 44 Section 5.6 Stock Options and Company Warrants 58 5.6 Other Stock-Based Awards; Employee Benefits 60 Matters 46 Section 5.7 Indemnification of Officers and Directors 60 Reasonable Best Efforts 51 Section 5.8 Additional Agreements 62 Takeover Statute 53 Section 5.9 Public Announcement 62 Announcements 53 Section 5.10 Listing 63 Indemnification and Insurance 53 Section 5.11 Tax Matters 63 Control of Operations 55 Section 5.12 Legends 63 Certain Transfer Taxes 55 Section 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 55 Section 5.14 Tax Matters 56 Section 5.15 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form Common Stock 56 Section 5.16 Board of Company Lock-Up Agreement Exhibit C-2 Form Directors of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing 56 Page Section 5.17 Dallas Business Presence 56 Section 5.18 Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.56 Section 5.19 Rights Agreements 56

Appears in 1 contract

Samples: Agreement and Plan of Merger (Pulte Homes Inc/Mi/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization49 Section 6.1 Organization and Qualification 50 Section 6.2 Ownership of Merger Sub; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Prior Activities 50 Section 6.3 Authority; Binding Nature Validity and Effect of Agreement 28 3.4 Vote Agreements 50 Section 6.4 No Conflict; Required 28 3.5 Non-Contravention; Filings and Consents 28 3.6 Capitalization 29 3.7 SEC Filings; 50 Section 6.5 Information Supplied 51 Section 6.6 Litigation 52 Section 6.7 Financial Statements 30 Capability 52 Section 6.8 Limited Guarantee 53 Section 6.9 No Ownership of Company Capital Stock 53 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Page Section 6.10 Certain Contracts 53 Section 6.11 Broker’s Fees 54 Section 6.12 Solvency 54 Section 6.13 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN 54 ARTICLE VII COVENANTS RELATING TO CONDUCT OF THE PARTIES 44 4.1 Operation BUSINESS 55 Section 7.1 Interim Operations 55 Section 7.2 No Fundamental Parent Changes 58 Section 7.3 No Control of ParentOther Party’s Business 44 4.2 Operation 58 ARTICLE VIII ADDITIONAL COVENANTS AND AGREEMENTS 59 Section 8.1 Proxy Statement; Company Stockholder Meeting 59 Section 8.2 Access to Information 60 Section 8.3 Further Actions 61 Section 8.4 Employees; Employee Benefit Plans 64 Section 8.5 Indemnification; Directors’ and Officers’ Insurance 65 Section 8.6 Solicitation 68 Section 8.7 Rule 14d-10 Matters 70 Section 8.8 Section 16 Matters 71 Section 8.9 Stock Exchange De-listing 71 Section 8.10 Parent Vote 71 Section 8.11 Financing 71 Section 8.12 Directors 76 Section 8.13 Litigation 77 Section 8.14 FIRPTA Certificate 78 Section 8.15 Redemption; Satisfaction and Discharge 78 Section 8.16 Payoff Letter and Prepayment 79 ARTICLE IX CONDITIONS PRECEDENT 79 Section 9.1 Conditions to Each Party’s Obligation to Consummate the Merger 79 Section 9.2 Conditions to Obligations of Parent and Merger Sub 80 Section 9.3 Conditions to Obligations of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 81 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification Page Section 9.4 Frustration of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Closing Conditions 82 ARTICLE X TERMINATION 82 Section 10.1 Termination of Certain Agreements and Rights 64 5.15 82 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 10.2 Effect of Termination 70 9.3 Expenses; 84 Section 10.3 Termination Fees 70 SELECTION 10. MISCELLANEOUS 84 ARTICLE XI GENERAL PROVISIONS 72 10.1 Non-Survival 86 Section 11.1 Nonsurvival of Representations and Warranties 72 10.2 86 Section 11.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement86 Section 11.3 Extension; Waiver 86 Section 11.4 Expenses 87 Section 11.5 Notices 87 Section 11.6 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Facsimile 88 Section 11.7 Entire Agreement 88 Section 11.8 Governing Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Venue 88 Section 11.9 Remedies 89 Section 11.10 Merger Sub 91 Section 11.11 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No 92 Section 11.12 Publicity 92 Section 11.13 Assignment; Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit 92 Section 11.14 WAIVER OF JURY TRIAL 93 Section 11.15 Non-Recourse 93 ANNEX A Definitions Exhibit B-1 Form Conditions to the Offer EXHIBIT A.1 Certificate of Company Stockholder Support Agreement Exhibit B-2 Form Ownership and Merger EXHIBIT A.2 Certificate of Parent Stockholder Support Agreement Exhibit C-1 Form Merger EXHIBIT B Certificate of Company LockIncorporation EXHIBIT C By-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Laws AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of November 1, 2012 (this “Agreement”) ), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSbetween JDA Software Group, INC.Inc., a Delaware corporation (the “Company”), RP Crown Parent, LLC, a Delaware limited liability company (“Parent”), SABRE MERGER SUBand RP Crown Acquisition Sub, INC. LLC, a Delaware corporation limited liability company and a wholly owned subsidiary of Parent (“Merger Sub”). The Company, Parent and ARS PHARMACEUTICALS, INC., Merger Sub may be referred to herein individually as a Delaware corporation (“Party” and collectively as the “CompanyParties). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 1 contract

Samples: Agreement and Plan of Merger (Jda Software Group Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 22 4.1 Organization and Qualification 22 4.2 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC FilingsApprovals 23 4.3 Financing Arrangement 24 4.4 Parent Information 24 4.5 Litigation 24 4.6 Ownership of Company Capital Stock 24 4.7 Merger Sub; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 Prior Activities 24 4.8 Other Agreements 24 4.9 Advisors Fees 24 4.10 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or and Warranties 44 SECTION 4. CERTAIN 25 ARTICLE 5 COVENANTS OF THE PARTIES 44 4.1 Operation 25 5.1 Conduct of Parent’s Business 44 4.2 Operation of Pending the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 Closing 25 5.2 Company Information StatementForbearances 25 5.3 Control of Operations 28 5.4 Cooperation 28 5.5 Access to Information; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Confidentiality 28 5.6 Solicitation by Company; Change of Company Options and Company Warrants 58 5.6 Board Recommendation; Intervening Event Change of Recommendation 29 5.7 Appropriate Action; Consents; Filings 32 5.8 Certain Notices; Supplemental Disclosure 33 5.9 Public Announcements 34 5.10 Employee Benefits 60 5.7 Benefit Matters 34 5.11 Takeover Laws 36 5.12 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 36 5.13 Parent Agreements Concerning Merger Sub 37 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 37 5.15 Stockholder Litigation 65 SECTION 6. 38 5.16 De-registration 38 5.17 Company Indebtedness 38 5.18 FIRPTA Affidavit 38 ARTICLE 6 CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION CONSUMMATION OF THE COMPANY 67 8.1 Accuracy MERGER 38 6.1 Conditions to Obligations of Representations 67 8.2 Performance Each Party to Consummate the Merger 38 6.2 Additional Conditions to Obligations of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 and Merger Sub 39 6.3 Additional Conditions to Obligations of the Company 40 ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER 40 7.1 Termination 68 9.2 40 7.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS 41 7.3 Amendment 42 7.4 Waiver 42 ARTICLE 8 GENERAL PROVISIONS 72 10.1 43 8.1 Non-Survival of Representations Representations, Warranties, Covenants and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Agreements 43 8.2 Fees and Expenses 43 8.3 Notices 43 8.4 Certain Definitions 44 8.5 Terms Defined Elsewhere 49 8.6 Headings 51 8.7 Severability 52 8.8 Entire AgreementAgreement 52 8.9 Assignment 52 8.10 Parties in Interest 52 8.11 Mutual Drafting; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Interpretation 52 8.12 Governing Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Consent to Jurisdiction; Waiver of Trial by Jury 52 8.13 Counterparts 53 8.14 Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form 53 8.15 Obligations of Parent Stockholder Support Agreement Exhibit C-1 Form of and the Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire 54 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of December 31, 2012 (this “Agreement”) is made and entered into as of July 21, 2022), by and among SILVERBACK THERAPEUTICSAvis Budget Group, INC.Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBMillennium Acquisition Sub, INC. Inc., a Delaware corporation and a wholly owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSZipcar, INC.Inc., a Delaware corporation (the “Company”). Certain All capitalized terms used in this Agreement are shall have the meanings assigned to such terms in Section 8.4 or as otherwise defined elsewhere in Exhibit A.this Agreement unless the context clearly indicates otherwise.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Avis Budget Group, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization36 Section 5.1. Organization 36 Section 5.2. Authority Relative to this Agreement 36 Section 5.3. Consents and Approvals; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityViolations 36 Section 5.4. Capitalization 37 Section 5.5. Proxy Statement; Binding Nature Information 37 Section 5.6. Brokers 38 Section 5.7. Financing 38 Section 5.8. Ownership of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence Shares 39 Section 5.9. Parent/FPSH Agreements 39 Section 5.10. Parent Information 39 ARTICLE VI COVENANTS 39 Section 6.1. Stockholders Meeting 39 Section 6.2. Proxy Statement 39 Section 6.3. Conduct of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 40 Section 6.4. Notification of Certain Matters 43 Section 6.5. Access to Information 43 Section 6.6. Additional Agreements, Commercially Reasonable Efforts 44 Section 6.7. Public Announcements 46 Section 6.8. Indemnification 46 Section 6.9. Contributions to Parent 48 Section 6.10. No Solicitation 48 Section 6.11. Resignation of Directors 50 Section 6.12. Solvency Opinion 50 Section 6.13. Related Agreements 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5Section 6.14. ADDITIONAL AGREEMENTS Exchange Agreement 51 Section 6.15. Privilege 51 Section 6.16. Employee Matters 51 Section 6.17. Merger Sub Charter Amendment 51 ARTICLE VII CONDITIONS TO CONSUMMATION OF THE PARTIES MERGER 52 5.1 Proxy Statement Section 7.1. Conditions to the Merger 52 5.2 Company Information StatementSection 7.2. Conditions to Each Party's Obligations to Effect the Merger 54 ARTICLE VIII TERMINATION; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 AMENDMENT; WAIVER 54 Section 8.1. Termination of Certain Agreements and Rights 64 5.15 54 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 68.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination 55 Section 8.3. Fees 70 SELECTION 10and Expenses 56 Section 8.4. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival Amendment 57 Section 8.5. Waiver 57 EXHIBIT A - Certificate of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form Merger EXHIBIT B - Stock Purchase Agreement EXHIBIT C - Contribution Agreement EXHIBIT D - Financing Commitment Letters EXHIBIT E - Shares of Company Stockholder Support Agreement Exhibit B-2 Form Common Stock to be Contributed to Parent EXHIBIT F - Equity Commitment Letter EXHIBIT G - Foreign Investment in Real Property Tax Act Affidavits EXHIBIT H - By-laws of Merger Sub Company Disclosure Schedule Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Disclosure Schedule AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of May 30, 2003 (this "Agreement”) "), is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC.Seminis Acquisition LLC, a Delaware corporation limited liability company ("Parent"), SABRE MERGER SUBSeminis Merger Corp., INC. a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and ARS PHARMACEUTICALSSeminis, INC.Inc., a Delaware corporation (the "Company"). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 1 contract

Samples: Agreement and Plan of Merger (Seminis Inc)

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REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due SECTION 4.01 Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Standing 31 SECTION 4.02 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contraventioncontravention 31 SECTION 4.03 Governmental Approvals 32 SECTION 4.04 Ownership and Operations of Merger Sub 33 SECTION 4.05 Sufficiency of Funds 33 SECTION 4.06 Solvency 34 SECTION 4.07 Brokers and Other Advisors 35 SECTION 4.08 Information Supplied 35 SECTION 4.09 Legal Proceedings 35 SECTION 4.10 Ownership of Company Common Stock 35 SECTION 4.11 Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans 35 SECTION 4.12 No Other Company Representations or Warranties 36 ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS SECTION 5.01 Conduct of Business 36 SECTION 5.02 Solicitation; Consents 28 3.6 Capitalization 29 3.7 SEC FilingsChange in Recommendation 40 SECTION 5.03 Efforts 45 SECTION 5.04 Public Announcements 48 SECTION 5.05 Access to Information; Financial Statements 30 Confidentiality 48 SECTION 5.06 Indemnification and Insurance 49 SECTION 5.07 Rule 16b-3 52 SECTION 5.08 Employee Matters 52 SECTION 5.09 Notification of Certain Matters; Stockholder Litigation 54 SECTION 5.10 Stock Exchange De-listing 54 SECTION 5.11 Preparation of the Proxy Statement; Stockholders Meeting 55 SECTION 5.12 Director Resignations 56 SECTION 5.13 Termination of Certain Agreements 56 SECTION 5.14 Financing 56 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Page SECTION 5.15 Financing Cooperation 58 SECTION 5.16 Payoff Letters and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 Lien Releases 62 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written 5.17 OIG Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.ARTICLE VI

Appears in 1 contract

Samples: Agreement and Plan of Merger (Owens & Minor Inc/Va/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Section 4.1 Organization and Qualification 35 Section 4.2 Authorization 35 Section 4.3 Consents and Approvals 36 Section 4.4 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Contravention 36 Section 4.5 Binding Effect 36 Section 4.6 Finders’ Fees 36 Section 4.7 Litigation and Claims 36 Section 4.8 Financing 36 Section 4.9 Parent Impediments 37 Section 4.10 Guarantee 37 Section 4.11 Merger Sub 37 Section 4.12 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN 37 ARTICLE V COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Section 5.1 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification Information 37 Section 5.2 Conduct of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 Business 38 Section 5.3 Parent Stockholders’ Meeting 55 Reasonable Best Efforts 39 Section 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 40 Section 5.5 Employee and Benefits Matters 41 Section 5.6 Certain Covenants 42 Section 5.7 Further Assurances 44 Section 5.8 Intellectual Property Matters 44 Section 5.9 Confidentiality 44 Section 5.10 Notification 44 Section 5.11 Financing 44 Section 5.12 Legends 63 Financing Cooperation 45 Section 5.13 Directors Internal Reorganization 47 Section 5.14 Access to Stockholders Insurance 48 Section 5.15 Indebtedness 48 Section 5.16 Pre-Closing Dividend 48 Section 5.17 Certain Ancillary Agreement and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Organizational Documents 48 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 ATH Network Participation Agreement 48 Section 5.19 Takeover Statutes 65 New Service Addenda 49 Section 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Cash Depot Agreement 49 Section 5.21 GM Group Waiver 49 Section 5.22 Required Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E 49 Section 5.23 Post-Closing Officers Access and Directors Exhibit F Form Cooperation 49 Section 5.24 Obligation to Make Payments 49 Section 5.25 Covenants Regarding Third Party License Agreements 50 Section 5.26 Sale of Company Assets 51 Section 5.27 Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Contracts 52 ARTICLE VI

Appears in 1 contract

Samples: Agreement and Plan of Merger (EVERTEC, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 50 5.01 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Enforceability 50 5.02 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence 50 5.03 Organization 51 5.04 Board Approvals 51 5.05 Litigation 51 5.06 Solvency 51 5.07 Investigation 52 5.08 Availability of Changes 32 3.9 Funds 52 5.09 Pending Transactions 52 5.10 Brokers 53 5.11 Purpose 53 5.12 Securities Matters 53 5.13 Disclaimer Regarding Projections 53 5.14 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Further Representations or Warranties 44 SECTION 4. CERTAIN 54 ARTICLE VI COVENANTS OF THE PARTIES 44 4.1 Operation 54 6.01 Conduct of the Business 54 6.02 Access to Books and Records 58 6.03 Confidentiality 59 6.04 Regulatory Filings 59 6.05 Conditions 61 6.06 Availability of Funds 61 6.07 Financing Cooperation 61 6.08 R&W Insurance Policy 62 6.09 Solicitation 63 6.10 Repayment of Specified Indebtedness 63 6.11 Certain Post-Signing Actions 63 6.12 Requisite Stockholder Approval 63 6.13 Related Party Transactions 63 ARTICLE VII ADDITIONAL COVENANTS 63 7.01 Post-Closing Access to Information 63 7.02 Director and Officer Indemnification and Insurance 64 7.03 Employee Matters 66 7.04 Tax Matters 69 7.05 280G 71 7.06 Further Assurances 71 7.07 Provision Respecting Legal Representation 71 ARTICLE VIII CONDITIONS TO CLOSING 73 8.01 Conditions to Parent’s Business 44 4.2 Operation of and Merger Sub’s Obligations 73 8.02 Conditions to the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification Obligations 73 8.03 Mutual Conditions to Closing 74 8.04 Waiver of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Conditions 74 ARTICLE IX TERMINATION 74 9.01 Termination 74 9.02 Notice of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 76 9.03 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. 76 ARTICLE X MISCELLANEOUS PROVISIONS 72 10.1 76 10.01 Non-Survival of Representations and Warranties 72 10.2 76 10.02 Press Releases and Communications 78 10.03 Expenses 79 10.04 Notices 79 10.05 Assignment 80 10.06 Severability 80 10.07 Interpretation 80 10.08 Construction; Disclosure Schedules; Exhibits 81 10.09 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreementand Waiver 82 10.10 Complete Agreement 82 10.11 Third-Party Beneficiaries 82 10.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; Counterparts; Exchanges PREVAILING PARTY 83 10.13 Waiver of Trial by Jury 83 10.14 Parent Deliveries 84 10.15 Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Delivery 84 10.16 Counterparts 84 10.17 Governing Law 84 10.18 Obligations of Merger Sub 84 10.19 Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: 84 10.20 Appointment of the Securityholder Representative 85 10.21 Non-Recourse; Release 87 EXHIBITS Exhibit A Definitions Accounting Principles Exhibit B-1 B Form of Company Stockholder Support Agreement Certificate of Merger Exhibit B-2 C Form of Parent Stockholder Support Agreement Letter of Transmittal Exhibit C-1 D Form of Company Lock-Up Agreement FIRPTA Certificate Exhibit C-2 E Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Surviving Corporation Certificate of Incorporation Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Surviving Corporation Bylaws AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of December 3, 2021, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSTAC Acquisition Corp., INC.a Delaware corporation (the “Company”), Commercial Metals Company, a Delaware corporation (“Parent”), SABRE MERGER SUBTahoe Merger Sub Inc., INC. a Delaware corporation and wholly owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Xxxxxx Xxxxxx Inc., a Delaware corporation corporation, solely in its capacity as the Securityholder Representative (the “CompanySecurityholder Representative”). Certain capitalized Capitalized terms used and not otherwise defined herein have the meanings set forth in this Agreement are defined in Exhibit A.ARTICLE I below.

Appears in 1 contract

Samples: Agreement and Plan of Merger (COMMERCIAL METALS Co)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 45 Section 5.1 Qualification, Organization, Subsidiaries, etc. 46 Section 5.2 Capital Stock 46 Section 5.3 Corporate Authority Relative to this Agreement; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Violation 48 Section 5.4 Reports and Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 49 Section 5.5 Internal Controls and Procedures 50 Section 5.6 No Undisclosed Liabilities 51 Section 5.7 Compliance with Law; Permits 51 Section 5.8 Environmental Laws and Regulations 52 Section 5.9 Employee Benefit Plans 53 Section 5.10 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Propertyor Events 54 Section 5.11 Investigations; Leasehold 32 3.13 Litigation 54 Section 5.12 Information Supplied 55 Section 5.13 Regulatory Matters 55 Section 5.14 Tax Matters 56 Section 5.15 Employment and Labor Matters 58 Section 5.16 Intellectual Property 33 3.14 Agreements, Contracts 58 Section 5.17 Real and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Personal Property 59 Section 5.18 Required Vote of Parent Stockholders 60 Section 5.19 Opinion of Financial Advisor 44 3.26 Disclaimer 61 Section 5.20 Material Contracts 61 Section 5.21 Finders or Brokers 62 Section 5.22 Insurance 62 Section 5.23 Derivative Products 63 Section 5.24 Related Party Transactions 63 Section 5.25 Lack of Other Ownership of Company Common Stock 63 Section 5.26 No Additional Representations or Warranties 44 SECTION 4. CERTAIN 64 Section 5.27 Debt Offer Financing 64 ARTICLE VI COVENANTS OF THE PARTIES 44 4.1 Operation AND AGREEMENTS 65 Section 6.1 Conduct of Parent’s Business 44 4.2 Operation by the Company 65 Section 6.2 Conduct of the Company’s Business 47 4.3 Access and by Parent 70 Section 6.3 Investigation 49 4.4 Parent 76 Section 6.4 Non-Solicitation 50 4.5 by the Company 77 Section 6.5 Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of by Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement81 Section 6.6 Filings; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Other Actions 85 Section 6.7 Stock Options and Company Warrants 58 5.6 Other Stock-Based Awards; Employee Benefits 60 5.7 Matters 88 Section 6.8 Regulatory Approvals; Reasonable Best Efforts 91 Section 6.9 Takeover Law 92 Section 6.10 Public Announcements 92 Section 6.11 Indemnification and Insurance 92 Section 6.12 Control of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Operations 94 Section 6.13 Certain Agreements and Rights 64 5.15 Transfer Taxes 94 Section 6.14 Section 16 Matters 64 5.16 94 Section 6.15 Reorganization Treatment 95 Section 6.16 Tax Representation Letters 95 Section 6.17 Stock Exchange Listing; Delisting 95 Section 6.18 Governance Matters; Headquarters 96 Section 6.19 Treatment of Certain Indebtedness 98 Section 6.20 Debt Offer Financing; Alternative Financing 100 Section 6.21 Financing Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.101 Section 6.22 Tax Matters 104 Section 6.23 Rights Plan 104

Appears in 1 contract

Samples: Agreement and Plan of Merger (GenOn Energy, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization46 Section 5.01 Existence and Power 46 Section 5.02 Authorization 46 Section 5.03 Governmental Authorization 47 Section 5.04 Non-Contravention 47 Section 5.05 Litigation 47 Section 5.06 No Brokers 47 Section 5.07 Ownership of Company Capital Stock 48 Section 5.08 Financial Capacity 48 Section 5.09 Solvency 48 Section 5.10 Ownership of Merger Sub; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Prior Activities 49 Section 5.11 Company Arrangements 49 Section 5.12 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Exclusive Arrangements 50 Section 5.13 No Additional Representations and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN 50 ARTICLE VI COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation 50 Section 6.01 Conduct of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent NonCompany Pending the Merger 50 Section 6.02 No-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Shop; Acquisition Proposals 54 Section 6.03 Appropriate Action; Consents; Filings 59 Section 6.04 Proxy Statement 52 5.2 Company Information Statement; Company Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options 61 Section 6.05 Access to Information 64 Section 6.06 Confidentiality; Public Announcements 65 Section 6.07 Cash and Company Warrants 58 5.6 Employee Benefits 60 5.7 Marketable Securities 66 Section 6.08 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax 66 Section 6.09 Section 16 Matters 63 5.12 Legends 63 5.13 67 Section 6.10 Merger Litigation 68 Section 6.11 Third Party Consents 68 Section 6.12 Notices of Certain Events 68 Section 6.13 Stock Exchange Delisting 69 Section 6.14 Merger Sub 69 Section 6.15 Conduct of Business by Parent Pending the Merger 69 Section 6.16 Resignation of Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 69 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 6.17 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. 69 Section 6.18 Convertible Notes 70 Section 6.19 Employee Matters 70 Section 6.20 Cooperation with Debt Financing 71 ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy THE TRANSACTION 74 Section 7.01 Conditions to the Obligations of Representations 66 7.2 Performance Each Party 74 Section 7.02 Conditions to the Obligations of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Parent and Merger Sub 75 Section 7.03 Conditions to the Obligations of the Company Material Adverse Effect 66 7.6 76 ARTICLE VIII TERMINATION 76 Section 8.01 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 76 Section 8.02 Effect of Termination 70 9.3 78 Section 8.03 Expenses; Termination Fees 70 SELECTION 10. Fee 78 ARTICLE IX MISCELLANEOUS PROVISIONS 72 10.1 Non-81 Section 9.01 Notices 81 Section 9.02 Remedies Cumulative; Specific Performance 82 Section 9.03 No Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement83 Section 9.04 Amendments and Waivers 83 Section 9.05 Disclosure Letter References 83 Section 9.06 Binding Effect; Benefit; Assignment 84 Section 9.07 Governing Law 84 Section 9.08 Jurisdiction 85 Section 9.09 Waiver of Jury Trial 85 Section 9.10 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Effectiveness 85 Section 9.11 Entire Agreement 86 Section 9.12 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: 86 Section 9.13 Non-Recourse 86 Section 9.14 Debt Financing Entities 87 Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form Certificate of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Merger AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of April 7, 2024, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSModel N, INC.Inc., a Delaware corporation (the “Company”), Mountain Parent, LLC, a Delaware limited liability company (“Parent”), SABRE MERGER SUBand Mountain Merger Sub, INC. Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Model N, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 36 Section 4.1. Due Organization, Good Standing and Corporate Power 36 Section 4.2. Authorization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityNoncontravention. 36 Section 4.3. Consents and Approvals 37 Section 4.4. Broker’s or Finder’s Fee 37 Section 4.5. Merger Sub’s Operations 37 Section 4.6. Funds 37 Section 4.7. Solvency 37 Section 4.8. Litigation 38 Section 4.9. Contact with Customers and Suppliers 38 Section 4.10. Investment Intent 38 Section 4.11. Investigation by Parent and Merger Sub; Binding Nature Company’s Liability 38 Section 4.12. Exclusivity of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title Representations 40 ARTICLE V COVENANTS 40 Section 5.1. Access to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Information Concerning Properties and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans Records 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4Section 5.2. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation Confidentiality 40 Section 5.3. Conduct of the Company’s Business 47 4.3 Access of the Company Pending the Closing Date 41 Section 5.4. Supplemental Information 43 Section 5.5. Reasonable Best Efforts 44 Section 5.6. Exclusive Dealing 44 Section 5.7. Indemnity; Directors’ and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Officers’ Insurance; Fiduciary and Employee Benefit Insurance. 45 Section 5.8. Public Announcements 45 Section 5.9. Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 46 Section 5.10. Merger Sub 46 Section 5.11. Transfer Taxes 46 Section 5.12. Preservation of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5Records. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification 46 Section 5.13. Resignation of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax 47 Section 5.14. Conflicts; Privileges 47 Section 5.15. Compliance with WARN Act and Similar Statutes 48 Section 5.16. 280G Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 48 Section 5.17. Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. 401(k) Plan 48 ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 748 Section 6.1. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT Conditions to the Obligations of Each Party 48 Section 6.2. Conditions to the Obligations of Parent and Merger Sub 49 Section 6.3. Conditions to the Obligations of the Company 49 Section 6.4. Frustration of Closing Conditions 50 ARTICLE VII TERMINATION AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 ABANDONMENT 50 Section 7.1. Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 850 Section 7.2. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses51 ARTICLE VIII SURVIVAL; Termination Fees 70 SELECTION 10INDEMNIFICATION 51 Section 8.1. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver51 Section 8.2. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form Indemnification of Parent Stockholder Support Indemnitees 52 Section 8.3. Indemnification by Parent 53 Section 8.4. Limitation on Indemnification; Mitigation. 53 Section 8.5. Losses Net of Insurance, Etc 54 Section 8.6. Indemnification Procedure 54 Section 8.7. Third-Party Claims 55 Section 8.8. No Recourse Against Equityholders or Stockholders’ Representative 56 Section 8.9. Sole Remedy/Waiver 56 ARTICLE IX MISCELLANEOUS 57 Section 9.1. Fees and Expenses 57 Section 9.2. Extension; Waiver 57 Section 9.3. Notices 58 Section 9.4. Entire Agreement 59 Section 9.5. Release 59 Section 9.6. Binding Effect; Benefit; Assignment; Joinder 59 Section 9.7. Stockholders’ Representative 60 Section 9.8. Amendment and Modification 62 Section 9.9. Counterparts 62 Section 9.10. Applicable Law 62 Section 9.11. Severability 63 Section 9.12. Specific Enforcement 63 Section 9.13. Waiver of Jury Trial 63 Section 9.14. Rules of Construction 63 Section 9.15. Headings 63 Section 9.16. Time of the Essence 63 Annexes Annex A – Additional Defined Terms Exhibits Exhibit C-1 1 – Form of Company Lock-Up Escrow Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21dated March 29, 2022, 2011 by and among SILVERBACK THERAPEUTICSBottomline Technologies (de), INC., a Delaware corporation Inc. (“Parent”), SABRE MERGER SUBa corporation organized under the laws of Delaware, INC. a Delaware corporation and wholly owned subsidiary of Parent Blackjack Acquisition Corp. (“Merger Sub”), a corporation organized under the laws of Delaware and ARS PHARMACEUTICALSa wholly owned subsidiary of Parent, LAS HOLDINGS, INC., a Delaware corporation . (the “Company”). Certain capitalized terms used , a corporation organized under the laws of Delaware, and H.I.G. LAW AUDIT, LLC, a Delaware limited liability company, solely in this Agreement are defined in Exhibit A.its capacity as Stockholders’ Representative hereunder (“LAC”).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Bottomline Technologies Inc /De/)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 56 4.1 Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityGood Standing 56 4.2 Corporate Power; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Enforceability 56 4.3 Non-ContraventionContravention 56 4.4 Requisite Governmental Approvals 57 4.5 Legal Proceedings; Consents 28 3.6 Capitalization 29 3.7 SEC FilingsOrders 57 4.6 Ownership of Company Common Stock 57 4.7 Brokers 58 4.8 Operations of Parent and Merger Sub 58 4.9 No Parent Vote or Approval Required 58 4.10 Available Funds 58 4.11 Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans 58 4.12 No Other Representations or Warranties 59 ARTICLE V INTERIM OPERATIONS OF THE COMPANY 60 5.1 Affirmative Obligations 60 5.2 Forbearance Covenants 60 5.3 No Solicitation; Financial Company Board Recommendation 64 5.4 No Control of the Other Party’s Business 69 ARTICLE VI ADDITIONAL COVENANTS 69 6.1 Required Action and Forbearance; Efforts 69 6.2 Antitrust Matters 70 6.3 Anti-Takeover Laws 72 6.4 Access 73 6.5 Section 16 and Rule 14d-10 Matters 73 6.6 Directors’ and Officers’ Exculpation, Indemnification and Insurance 74 6.7 Employee Matters 76 6.8 Obligations of Merger Sub 79 6.9 Public Statements 30 and Disclosure 79 TABLE OF CONTENTS (continuedcont’d) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real PropertyPage 6.10 Transaction Litigation 80 6.11 Stock Exchange Delisting; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Deregistration 80 6.12 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors 80 6.13 Parent Vote 80 ARTICLE VII CONDITIONS TO THE MERGER 80 7.1 Conditions to Each Party’s Obligations to Effect the Transactions 80 ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER 81 8.1 Termination 81 8.2 Xxxxxx and Officers 63 5.14 Termination Notice of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Termination; Effect of Termination 70 9.3 Expenses83 8.3 Fees and Expenses 83 8.4 Amendment 84 8.5 Extension; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Waiver 84

Appears in 1 contract

Samples: Agreement and Plan of Merger (Darden Restaurants Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 53 4.1 Corporate Existence and Power 53 4.2 Corporate Authorization 54 4.3 Governmental Authorizations 54 4.4 Non-ContraventionContravention 54 4.5 Disclosure Documents 54 4.6 Litigation 55 4.7 Ownership of Company Securities; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence Section 203 DGCL 55 4.8 Solvency 55 4.9 No Vote of Changes 32 3.9 Parent Stockholders 55 4.10 Finders’ Fees 56 4.11 Sufficient Funds 56 4.12 National Security Matters 56 4.13 Operations of Merger Sub 56 4.14 Parent and Management Arrangements 56 4.15 Non-Reliance 56 4.16 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS 57 ARTICLE V INTERIM OPERATIONS OF THE PARTIES 44 4.1 Operation COMPANY 57 5.1 Affirmative Obligations 57 5.2 Forbearance Covenants 58 5.3 No Solicitation 62 5.4 No Control of Parentthe Other Party’s Business 44 4.2 Operation 66 ARTICLE VI ADDITIONAL COVENANTS 67 6.1 Required Action and Forbearance; Efforts 67 6.2 Antitrust and Regulatory Matters 67 6.3 Proxy Statement 71 6.4 Company Stockholder Meeting 72 6.5 Indebtedness 73 6.6 Anti-Takeover Laws 74 6.7 Access 74 6.8 Section 16(b) Exemption 75 6.9 Directors’ and Officers’ Exculpation, Indemnification and Insurance 75 6.10 Employee Matters 77 6.11 Obligations of the Company’s Business 47 4.3 Access Merger Sub 80 6.12 Public Statements and Investigation 49 4.4 Disclosure 80 6.13 Transaction Litigation 81 6.14 Stock Exchange Delisting; Xxxxxxxxxxxxxx 00 6.15 Additional Agreements 81 6.16 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Vote 81 6.17 Treatment of Notes and Capped Call Transactions 81 6.18 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees 83 ARTICLE VII CONDITIONS TO THE MERGER 83 7.1 Conditions to Each Party’s Obligations to Effect the Merger 83 7.2 Conditions to the Obligations of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 Merger Sub 84 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Conditions to the Company’s Obligations to Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“the Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.84

Appears in 1 contract

Samples: Agreement and Plan of Merger (Oak Street Health, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 23 Section 4.1 Due Organization; No Subsidiaries 23 Page Section 4.2 Capitalization 24 Section 4.3 SEC Filings; Financial Statements 25 Section 4.4 Absence of Changes 26 Section 4.5 Title to Assets 26 Section 4.6 Liabilities 26 Section 4.7 Compliance; Permits; Restrictions 26 Section 4.8 Certain Business Practices 27 3.2 Organizational Documents 27 3.3 Section 4.9 Tax Matters 28 Section 4.10 Legal Proceedings; Orders 29 Section 4.11 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 29 Section 4.12 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence Section 4.13 Information Supplied 30 Section 4.14 Ownership of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Company Common Stock 31 Section 4.15 Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. 31 Article V CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 31 Section 5.1 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 31 Section 5.2 Conduct of the Parties 31 Section 5.3 Unsolicited Proposals 34 Section 5.4 Adverse Recommendation Change 36 Section 5.5 Preparation of Proxy Statement and Form S-4 37 Section 5.6 Company Non-Solicitation 51 4.6 Notification Stockholders’ Meeting 38 Section 5.7 Approval by Sole Stockholder of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. Merger Sub 39 Article VI ADDITIONAL AGREEMENTS COVENANTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory 39 Section 6.1 Filings and Approvals 57 5.5 Company Options 39 Section 6.2 Employee Compensation and Company Warrants 58 5.6 Employee Benefits 60 5.7 40 Section 6.3 Plan of Reorganization 42 Section 6.4 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination 42 Section 6.5 Transaction Litigation 44 Section 6.6 Disclosure 44 Section 6.7 Takeover Laws; Advice of Certain Agreements and Rights 64 5.15 Changes 44 Section 6.8 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 45 Section 6.9 Confidentiality 45 Section 6.10 Stock Exchange Delisting; Deregistration 45 Section 6.11 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Common Stock 45

Appears in 1 contract

Samples: Agreement and Plan of Merger (Dimension Therapeutics, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization46 Section 5.01 Corporate Existence and Power 46 Section 5.02 Corporate Authorization 46 Section 5.03 Governmental Authorization 47 Section 5.04 Non-Contravention 47 Section 5.05 Litigation 48 Section 5.06 No Brokers 48 Section 5.07 Ownership of Company Capital Stock 48 Section 5.08 Financial Capacity 48 Section 5.09 Solvency 49 Section 5.10 Ownership of Merger Sub; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Prior Activities 50 Section 5.11 Company Arrangements 50 Section 5.12 Investment Intention 50 Section 5.13 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Additional Representations and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 450 Article VI. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation 51 Section 6.01 Conduct of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Company Pending the Merger 51 Section 6.02 Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 55 Section 6.03 Appropriate Action; Consents; Filings 59 Section 6.04 Proxy Statement 52 5.2 Company 61 Section 6.05 Access to Information Statement64 Section 6.06 Confidentiality; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Public Announcements 65 Section 6.07 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax 66 Section 6.08 Section 16 Matters 63 5.12 Legends 63 5.13 67 Section 6.09 Stockholder Litigation 67 Section 6.10 Employee Matters 67 Section 6.11 Third Party Consents 68 Section 6.12 Notices of Certain Events 68 Section 6.13 Stock Exchange Delisting 69 Section 6.14 Merger Sub 69 Section 6.15 Conduct of Business by Parent Pending the Merger 69 Section 6.16 Financing Cooperation 70 Section 6.17 Financing 72 Section 6.18 Termination of Company Credit Agreement 73 Section 6.19 Resignation of Directors and Officers 63 5.14 73 Section 6.20 Termination of Certain Agreements and Rights 64 5.15 Contracts 73 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 6.21 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 673 Section 6.22 CFIUS Matters. 74 Section 6.23 Transaction Tax Deductions 74 Article VII. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy THE TRANSACTION 75 Section 7.01 Conditions to the Obligations of Representations 66 7.2 Performance Each Party 75 Section 7.02 Conditions to the Obligations of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Parent and Merger Sub 75 Section 7.03 Conditions to the Obligations of the Company Material Adverse Effect 66 7.6 Termination 76 Section 7.04 Frustration of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9Closing Conditions 77 Article VIII. TERMINATION 68 9.1 77 Section 8.01 Termination 68 9.2 77 Section 8.02 Effect of Termination 70 9.3 79 Section 8.03 Expenses; Termination Fees 70 SELECTION 10Fee 80 Article IX. MISCELLANEOUS PROVISIONS 72 10.1 Non-83 Section 9.01 Notices 83 Section 9.02 Remedies Cumulative; Specific Performance 85 Section 9.03 No Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement86 Section 9.04 Amendments and Waivers 86 Section 9.05 Disclosure Letter References 87 Section 9.06 Binding Effect; Benefit; Assignment 87 Section 9.07 Governing Law 88 Section 9.08 Jurisdiction 88 Section 9.09 Waiver of Jury Trial 89 Section 9.10 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Effectiveness 90 Section 9.11 Entire Agreement 90 Section 9.12 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: 90 Section 9.13 Non-Recourse 90 Exhibit A Definitions Guarantors Exhibit B-1 B Form of Company Stockholder Support Agreement Exhibit B-2 Form Certificate of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Merger AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of August 19, 2021, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSInovalon Holdings, INC.Inc., a Delaware corporation (the “Company”), Ocala Bidco, Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBand Ocala Merger Sub, INC. Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Inovalon Holdings, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization22 SECTION 4.1 Existence; Good Standing; Corporate Authority 22 SECTION 4.2 Authorization, Validity and Effect of Agreements 22 SECTION 4.3 Capitalization 22 SECTION 4.4 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityViolation; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 Compliance with Laws 22 SECTION 4.5 No Conflict 23 SECTION 4.6 SEC FilingsDocuments; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 23 SECTION 4.7 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence 24 ARTICLE 5 COVENANTS 24 SECTION 5.1 Company’s Conduct of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 Business 24 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of 5.2 Parent’s Conduct of Business 44 4.2 Operation 26 SECTION 5.3 No Solicitation by the Company 26 SECTION 5.4 Meeting of the Company’s Business 47 4.3 Access Stockholders 27 SECTION 5.5 Filings; Reasonable Best Efforts 28 SECTION 5.6 Inspection; Confidentiality 28 SECTION 5.7 Publicity 29 SECTION 5.8 Registration Statement; Proxy Statement 29 SECTION 5.9 Listing Application 30 SECTION 5.10 Agreements of Affiliates 30 SECTION 5.11 Expenses 30 SECTION 5.12 Indemnification and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Insurance 30 SECTION 5.13 Reorganization 31 SECTION 5.14 Company Non-Solicitation 51 4.6 Stock Options 31 SECTION 5.15 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 31 SECTION 5.16 Employee Share Purchase Plan 32 SECTION 5.17 Transfer of Employees Insurance Policies 32 SECTION 5.18 Cooperation 32 SECTION 5.19 Fairness Opinion 32 ARTICLE 6 CONDITIONS 32 SECTION 6.1 Conditions to Each Party’s Obligation to Effect the Merger 32 SECTION 6.2 Conditions to Obligation of The Company to Effect The Merger 32 SECTION 6.3 Conditions to Obligation of Parent 52 TABLE OF CONTENTS (continued) and Merger Sub to Effect the Merger 33 ARTICLE 7 TERMINATION 34 SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 7.1 Termination by Mutual Consent 34 SECTION 7.2 Termination by Parent or the Company Information Statement; Stockholder Written Consent 53 5.3 34 SECTION 7.3 Termination by the Company 35 SECTION 7.4 Termination by Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 35 SECTION 7.5 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 Payments 36 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 ExpensesVote 37 ARTICLE 8 GENERAL PROVISIONS 37 SECTION 8.1 Effect of Termination; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 37 SECTION 8.2 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.37 Page

Appears in 1 contract

Samples: Agreement and Plan of Merger (Lamar Advertising Co/New)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 49 SECTION 5.1. Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature , Standing and Corporate Power 49 SECTION 5.2. Corporate Authorization 49 SECTION 5.3. Noncontravention 50 SECTION 5.4. Governmental Approvals 50 SECTION 5.5. Information Supplied 50 SECTION 5.6. Ownership and Operations of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 Merger Sub 51 SECTION 5.7. Financing 51 SECTION 5.8. Brokers and Other Advisors 51 SECTION 5.9. Legal Proceedings 51 TABLE OF CONTENTS (continued) 3.8 Absence PAGE SECTION 5.10. No Additional Representations; Reliance 51 ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS 52 SECTION 6.1. Conduct of Changes 32 3.9 No Competitive Products 32 3.10 Absence Business by the Company 52 SECTION 6.2. Restrictions on the Conduct of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 Business by the Company 52 SECTION 46.3. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation Preparation of the Company’s Business 47 4.3 Proxy Statement; Company Stockholders Meeting 56 SECTION 6.4. No Solicitation by the Company 58 SECTION 6.5. Reasonable Best Efforts 62 SECTION 6.6. Public Announcements 64 SECTION 6.7. Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 to Information; Confidentiality 64 SECTION 6.8. Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination 64 SECTION 6.9. Indemnification and Insurance 65 SECTION 6.10. Securityholder Litigation 65 SECTION 6.11. Fees and Expenses 66 SECTION 6.12. Rule 16b-3 66 SECTION 6.13. State Takeover Laws 66 SECTION 6.14. Further Assurances 66 SECTION 6.15. Resignation of Employees Directors 66 SECTION 6.16. Employee Matters 67 SECTION 6.17. Intellectual Property Covenants 68 ARTICLE VII CONDITIONS PRECEDENT 68 SECTION 7.1. Conditions to Each Party’s Obligation to Effect the Merger 68 SECTION 7.2. Conditions to Obligations of Parent 52 and Merger Sub 69 SECTION 7.3. Conditions to Obligation of the Company 70 SECTION 7.4. Frustration of Closing Conditions 70 ARTICLE VIII TERMINATION 71 SECTION 8.1. Termination 71 SECTION 8.2. Effect of Termination 73 SECTION 8.3. Termination Fees 73 TABLE OF CONTENTS (continued) PAGE ARTICLE IX MISCELLANEOUS 74 SECTION 59.1. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information StatementNo Survival 74 SECTION 9.2. Amendment or Supplement 75 SECTION 9.3. Extension of Time; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 Waiver 75 SECTION 69.4. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 Assignment; Binding Effect 75 SECTION 79.5. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8Counterparts 76 SECTION 9.6. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Third-Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.76

Appears in 1 contract

Samples: Agreement and Plan of Merger (Authentec Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 27 6.1. Organization, Good Standing and Qualification 27 6.2. Corporate Authority 27 6.3. Governmental Filings; No Subsidiaries Violations; Etc. 27 3.2 Organizational Documents 27 3.3 Authority6.4. Litigation 28 6.5. Available Funds 28 6.6. Brokers and Finders 29 6.7. Certain Arrangements 29 6.8. Operations of Merger Sub; Binding Nature No Prior Activities 29 6.9. Ownership of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization Common Stock 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence 6.10. No Other Representations and Warranties 29 6.11. Acknowledgement of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or and Warranties 44 SECTION 429 ARTICLE VII COVENANTS AND AGREEMENTS 30 7.1. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation Conduct of Parent’s Business 44 4.2 Operation by the Company 30 7.2. No Solicitation; Change of the Company’s Business 47 4.3 Recommendation 35 7.3. Shareholders Meeting; Proxy Statement; Schedule 13E-3 39 7.4. Shareholder Litigation 42 7.5. Reasonable Best Efforts 42 7.6. Access and Investigation 49 4.4 Parent NonReports 46 7.7. Stock Exchange De-Solicitation listing 47 7.8. Publicity 47 7.9. Employee Matters 47 7.10. Expenses 48 7.11. Indemnification; Directors’ and Officers’ Insurance 48 7.12. State Takeover Statutes 50 4.5 Company Non-Solicitation 51 4.6 7.13. Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 550 7.14. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 50 7.15. Parent Vote 51 ARTICLE VIII CONDITIONS TO THE MERGER 51 8.1. Conditions to Each Party’s Obligation to Effect the Merger 51 8.2. Conditions to Obligations of Parent and Merger Sub 51 8.3. Conditions to Obligation of the Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 652 ARTICLE IX TERMINATION 53 9.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7Termination by Mutual Consent 53 9.2. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Termination by Parent or the Company Material Adverse Effect 66 7.6 53 9.3. Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 by the Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 854 9.4. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Termination by Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 954 9.5. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expensesand Abandonment 54 ARTICLE X MISCELLANEOUS AND GENERAL 54 10.1. Survival 54 10.2. Amendments; Termination Fees 70 SELECTION 10Waivers 55 10.3. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 WaiverSpecial Committee Approval 55 10.4. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable LawEffectiveness 55 10.5. Governing Law and Venue; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Waiver of Jury Trial 55 10.6. Specific Performance 74 10.12 57 10.7. Notices 57 10.8. Entire Agreement 59 10.9. No Third Party Beneficiaries 75 10.13 59 10.10. Obligations of Parent and of the Company 59 10.11. Definitions 60 10.12. Severability 60 10.13. Interpretation; Construction 75 Exhibits: 60 10.14. Assignment 61 ANNEXES Annex A Definitions EXHIBITS Exhibit A Definitions Exhibit B-1 Form Surviving Corporation Certificate of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Incorporation AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of May 17, 2024, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSAvangrid, INC.Inc., a Delaware New York corporation (the “Company”), Iberdrola, S.A., a corporation organized under the laws of Spain (“Parent”), SABRE MERGER SUBand Arizona Merger Sub, INC. Inc., a Delaware New York corporation and wholly a wholly-owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain All capitalized terms term used in this Agreement are defined shall have the meaning ascribed to them in Exhibit A.Annex A hereto.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Avangrid, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization37 4.1 Organization and Authority of Holdings, Parent and Merger Sub 37 4.2 No Conflicts; Consents 38 4.3 Capitalization 38 4.4 No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature 39 4.5 Undisclosed Liabilities 39 4.6 Material Contracts 39 4.7 No Prior Merger Sub Operations 40 4.8 Legal Proceedings 40 4.9 Brokers 40 4.10 Full Disclosure 40 4.11 Section 351 Qualification 40 4.12 Taxes 41 4.13 Intentionally Omitted 41 ARTICLE V COVENANTS 41 5.1 Conduct of Agreement 28 3.4 Vote Required 28 3.5 Business Prior to the Closing 41 5.2 Access to Information 42 5.3 No Solicitation of Other Bids 43 5.4 Stockholders Consent 44 5.5 Notice of Certain Events 44 5.6 Intentionally Omitted 44 5.7 Governmental Approvals and Consents 45 5.8 Directors’ and Officers’ Indemnification and Insurance 46 5.9 Closing Conditions 47 5.10 Public Announcements 47 5.11 Business and Growth Capital Plan 47 5.12 Equity Compensation 47 5.13 Spin Out of Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence Healthcare Joint Venture 47 5.14 Further Assurances 48 5.15 PPP Loan Cooperation/Record Retention 48 5.16 Waived Closing Conditions 48 5.17 Disclosure Schedules 49 ARTICLE VI TAX MATTERS 49 6.1 Tax Covenants 49 6.2 Termination of Changes 32 3.9 No Competitive Products 32 3.10 Absence Existing Tax Sharing Agreements 49 6.3 Tax Returns 50 6.4 Straddle Period 51 6.5 Contests 51 6.6 Cooperation and Exchange of Undisclosed Liabilities 32 3.11 Title Information 52 6.7 Refunds and Credits 52 6.8 Post-Closing Actions 52 6.9 FIRPTA Statement 53 6.10 Tax Treatment of Transactions 53 ARTICLE VII CONDITIONS TO CLOSING 53 7.1 Conditions to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts Obligations of All Parties 53 7.2 Conditions to Obligations of Parent and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation Merger Sub 53 7.3 Conditions to Obligations of the Company’s Business 47 4.3 Access and Company 54 ARTICLE VIII INDEMNIFICATION 55 8.1 Survival 55 8.2 Indemnification by Stockholders 56 8.3 Indemnification by Parent 56 8.4 Certain Limitations 56 8.5 Indemnification Procedures 57 8.6 Payments; Setoff 59 8.7 Tax Treatment of Indemnification Payments 59 8.8 Effect of Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 59 8.9 Exclusive Remedies 60 5.7 Indemnification of Officers and Directors ARTICLE IX TERMINATION 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 Pre-Business Combination Agreement 60 9.2 Termination Post-Business Combination Agreement 61 9.3 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. 61 ARTICLE X MISCELLANEOUS PROVISIONS 72 61 10.1 Non-Survival of Representations Stockholder Representative 61 10.2 Expenses 63 10.3 Notices 64 10.4 Interpretation 64 10.5 Headings 65 10.6 Severability 65 10.7 Entire Agreement 65 10.8 Successors and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Assigns 65

Appears in 1 contract

Samples: Agreement and Plan of Merger (GigCapital2, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization45 Section 5.01 Corporate Existence and Power 45 Section 5.02 Corporate Authorization 45 Section 5.03 Consents and Approvals; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityViolations 45 Section 5.04 Capitalization and Operation of Merger Sub 46 Section 5.05 Litigation 46 Section 5.06 Available Funds 46 Section 5.07 Solvency 47 Section 5.08 Absence of Certain Agreements 48 Section 5.09 Stock Ownership 48 Section 5.10 Brokers’ Fees 48 Section 5.11 Information in the Proxy Statement 48 Section 5.12 Investment Intention 49 Section 5.13 Disclaimer of other Representations and Warranties 49 Section 5.14 Investigation; Binding Nature No Other Representations and Warranties 49 ARTICLE 6 COVENANTS 50 Section 6.01 Conduct of the Company 50 Section 6.02 Go-Shop; Unsolicited Proposals 54 Section 6.03 Board Recommendation 57 Section 6.04 Adoption of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention58 Section 6.05 Access to Information 62 Section 6.06 Notice of Certain Events; Transaction Litigation 62 Section 6.07 Employee Benefit Plan Matters 63 Section 6.08 State Takeover Laws 64 Section 6.09 Obligations of Merger Sub 64 Section 6.10 Director and Officer Liability 65 Section 6.11 Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 and Approvals 67 Section 6.12 Public Announcements 70 Section 6.13 Section 16 Matters 70 Section 6.14 Confidentiality 70 Section 6.15 Financing 70 Section 6.16 Cooperation with Financing 72 Section 6.17 FIRPTA Certificate 75 Section 6.18 Stock Exchange Delisting and Deregistration 75 TABLE OF CONTENTS (continued) 3.8 Absence ARTICLE 7 CONDITIONS TO THE MERGER 75 Section 7.01 Conditions to the Obligations of Changes 32 3.9 No Competitive Products 32 3.10 Absence Each Party 75 Section 7.02 Conditions to the Obligations of Undisclosed Liabilities 32 3.11 Title Parent and Merger Sub 76 Section 7.03 Conditions to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation the Obligations of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification 77 Section 7.04 Frustration of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Conditions 77 ARTICLE 8 TERMINATION 77 Section 8.01 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 77 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 8.02 Effect of Termination; Payment of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. Fee 79 ARTICLE 9 MISCELLANEOUS PROVISIONS 72 10.1 Non-81 Section 9.01 Notices 81 Section 9.02 No Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 82 Section 9.03 Amendments and Waivers 82 Section 9.04 Expenses 82 Section 9.05 Assignment; Benefit 82 Section 9.06 Governing Law 83 Section 9.07 Jurisdiction 83 Section 9.08 Waiver of Jury Trial 83 Section 9.09 Specific Performance 83 Section 9.10 Severability 85 Section 9.11 Entire Agreement; No Reliance 85 Section 9.12 Rules of Construction 85 Section 9.13 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 Effectiveness 86 Section 9.14 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit Recourse 86 Section 9.15 No Liability for Debt Financing Sources 86 EXHIBITS AND SCHEDULES EXHIBIT A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire – COMPANY CERTIFICATE EXHIBIT B – COMPANY WARRANT AGREEMENT EXHIBIT C – ESCROW AGREEMENT SCHEDULE 1.01(a) – KNOWLEDGE PARTIES SCHEDULE 5.08 – ABSENCE OF CERTAIN AGREEMENTS SCHEDULE 6.01 – CONDUCT OF THE COMPANY COMPANY DISCLOSURE SCHEDULE AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) ), dated as of April 1, 2024, is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICSCadent, INC.LLC, a Delaware corporation limited liability company (“Parent”), SABRE MERGER SUBAward Merger Sub, INC. Inc., a Delaware corporation and wholly a wholly-owned subsidiary Subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSAdTheorent Holding Company, INC.Inc., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A., Novacap Cadent Acquisition Company, Inc., a Delaware corporation (the “Borrower”) and Novacap Cadent Holdings, Inc. (“Holdings”).

Appears in 1 contract

Samples: Agreement and Plan of Merger (AdTheorent Holding Company, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization43 Section 5.01 Organization of Parent and Merger Sub 43 Section 5.02 Ownership of Merger Sub; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityPrior Activities 43 Section 5.03 Authorization of Transaction; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 Effect 44 Section 5.04 Noncontravention 44 Section 5.05 Broker’s Fees 44 Section 5.06 Financing 44 Section 5.07 Litigation 45 Section 5.08 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN Disqualification 45 ARTICLE VI COVENANTS OF THE PARTIES 44 4.1 45 Section 6.01 Operation of Parent’s Business 44 4.2 Operation 45 Section 6.02 Notices and Consents 47 Section 6.03 Access 48 Section 6.04 Contact with Customers and Suppliers 48 Section 6.05 Consents 48 Section 6.06 Fund Proxy Statements; Registration Statements 49 Section 6.07 Section 15(f) of the Company’s Business 47 4.3 Investment Company Act 50 ARTICLE VII ADDITIONAL AGREEMENTS 51 Section 7.01 Further Assurances 51 Section 7.02 Press Releases; Public Announcement 51 Section 7.03 Transaction Expenses 51 Section 7.04 Confidentiality 51 Section 7.05 Commercially Reasonable Efforts to Complete 52 Section 7.06 Employee Matters 53 Section 7.07 Provision Respecting Representation of the Acquired Companies and Company Stockholder 54 Section 7.08 Directors’ and Officers’ Indemnification 54 Section 7.09 Post-Closing Record Retention and Access 55 Section 7.10 Tax Provisions 55 Section 7.11 Transfer Taxes 58 Section 7.12 Additional Agreements of Parent and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Merger Sub 58 Section 7.13 Fiduciary Duties 58 Section 7.14 Stockholder Approval 58 Section 7.15 Stockholder Action 59 Section 7.16 Exclusivity 59 Section 7.17 Termination of Employees Affiliate Arrangements 60 Section 7.18 Additional Agreements 60 Section 7.19 Regulatory Cash Accounts 60 ARTICLE VIII CONDITIONS 60 Section 8.01 Conditions to Obligation of Parent 52 TABLE and Merger Sub 60 Section 8.02 Conditions to Obligation of the Company 62 ARTICLE IX TERMINATION; EFFECT OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 TERMINATION 64 Section 9.01 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 9.02 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-64 ARTICLE X INDEMNIFICATION 65 Section 10.01 Survival of Representations Representations, Warranties, Covenants and Warranties Agreements 65 Section 10.02 Special Definitions 65 Section 10.03 Indemnification by the Company Stockholders and Participating Optionholders 65 Section 10.04 Limitations 66 Section 10.05 Indemnification by Parent 67 Section 10.06 Exclusive Remedy 68 Section 10.07 Procedures for Third Party Claims 68 Section 10.08 Procedures for Inter-Party Claims 70 Section 10.09 Duty to Mitigate 70 Section 10.10 Damages 71 Section 10.11 Payment of Damages 71 Section 10.12 Treatment of Indemnity Payments 72 10.2 Amendment Section 10.13 Release of Escrow 72 10.3 Waiver. ARTICLE XI MISCELLANEOUS 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 Section 11.01 No Third Party Beneficiaries 72 Section 11.02 Remedies 72 Section 11.03 Entire Agreement 72 Section 11.04 Successors and Assigns 73 Section 11.05 Counterparts 73 Section 11.06 Headings 73 Section 11.07 Notices 73 Section 11.08 Governing Law 75 10.13 Section 11.09 Waiver of Jury Trial 75 Section 11.10 Consent to Jurisdiction 75 Section 11.11 Amendments and Waivers 76 Section 11.12 Incorporation of Exhibits and Schedules 76 Section 11.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of 76 Section 11.14 Interpretation 76 Section 11.15 Disclosure Schedule 76 Section 11.16 Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Representative 77

Appears in 1 contract

Samples: Merger Agreement (DST Systems Inc)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 40 4.1 Organization; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityGood Standing 40 4.2 Corporate Power; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Enforceability 40 4.3 Non-ContraventionContravention 41 4.4 Requisite Governmental Approvals 41 4.5 Legal Proceedings; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 Orders 41 4.6 Ownership of Company Common Stock 41 4.7 Brokers 42 4.8 Operations of Parent and Merger Sub 42 4.9 No Parent Vote or Approval Required 42 4.10 Fee Funding Arrangement 42 4.11 Financing 42 4.12 Stockholder and Management Arrangements 44 TABLE OF CONTENTS (continuedcont’d) 3.8 Absence of Changes 32 3.9 Page 4.13 Solvency 44 4.14 Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans 45 4.15 Parent and Merger Sub Information 45 4.16 Certain Competing Businesses 45 4.17 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS 45 ARTICLE V INTERIM OPERATIONS OF THE PARTIES 44 4.1 Operation COMPANY 46 5.1 Affirmative Obligations 46 5.2 Forbearance Covenants 46 5.3 No Solicitation 50 5.4 No Control of Parentthe Other Party’s Business 44 4.2 Operation 55 ARTICLE VI ADDITIONAL COVENANTS 55 6.1 Required Action and Forbearance; Efforts 55 6.2 Antitrust and Regulatory Matters 56 6.3 Proxy Statement and Other Required SEC Filings 58 6.4 Company Stockholder Meeting 60 6.5 Financing 61 6.6 Financing Cooperation 63 6.7 Anti-Takeover Laws 66 6.8 Access 67 6.9 Section 16(b) Exemption 67 6.10 Directors’ and Officers’ Exculpation, Indemnification and Insurance 67 6.11 Employee Matters 70 6.12 Obligations of the Company’s Business 47 4.3 Access Merger Sub 72 6.13 Public Statements and Investigation 49 4.4 Disclosure 72 6.14 Transaction Litigation 72 6.15 Stock Exchange Delisting; Xxxxxxxxxxxxxx 00 6.16 Additional Agreements 73 6.17 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 Vote 73 TABLE OF CONTENTS (continuedcont’d) SECTION 5. ADDITIONAL AGREEMENTS OF Page ARTICLE VII CONDITIONS TO THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information StatementMERGER 73 7.1 Conditions to Each Party’s Obligations to Effect the Merger 73 7.2 Conditions to the Obligations of Parent and Merger Sub 73 7.3 Conditions to the Company’s Obligations to Effect the Merger 74 ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER 75 8.1 Termination 75 8.2 Manner and Notice of Termination; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses77 8.3 Fees and Expenses 77 8.4 Amendment 80 8.5 Extension; Termination Fees 70 SELECTION 10. MISCELLANEOUS Waiver 81 ARTICLE IX GENERAL PROVISIONS 72 10.1 Non-81 9.1 Survival of Representations Representations, Warranties and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Covenants 81 9.2 Notices 81 9.3 Assignment 82 9.4 Confidentiality 83 9.5 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Agreement 83 9.6 Third-Party Beneficiaries 75 10.13 Construction 75 Exhibits: 83 9.7 Severability 83 9.8 Remedies 84 9.9 Governing Law 85 9.10 Consent to Jurisdiction 85 9.11 WAIVER OF JURY TRIAL 86 9.12 No Recourse 87 9.13 Company Disclosure Letter References 87 9.14 Counterparts 87 EXHIBITS Exhibit A Definitions Certificate of Incorporation of the Company Exhibit B-1 B Form of Company Stockholder Support Agreement Exhibit B-2 Form Certificate of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Merger AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21August 7, 20222019, by and among SILVERBACK THERAPEUTICS, INC.Catalog Intermediate Inc., a Delaware corporation (“Parent”), SABRE MERGER SUBCatalog Merger Sub Inc., INC. a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Cambrex Corporation, a Delaware corporation (the “Company”). Certain Each of Parent, Merger Sub and the Company are sometimes referred to as a “Party.” All capitalized terms that are used in this Agreement are defined have the respective meanings given to them in Exhibit A.this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Cambrex Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 37 Section 4.1 Due Organization, Good Standing and Corporate Power 37 Section 4.2 Authorization; Noncontravention 38 Section 4.3 Consents and Approvals 38 Section 4.4 Broker’s or Finder’s Fee 39 Section 4.5 Merger Sub’s Operations 39 Section 4.6 Financing 39 Section 4.7 Solvency 40 Section 4.8 Litigation 40 Section 4.9 Investment Intent 40 Section 4.10 Plant Closings and Mass Layoffs 40 Article V COVENANTS AND OTHER AGREEMENTS 41 Section 5.1 Interim Covenants 41 Section 5.2 401(k) Plan 42 Section 5.3 Confidentiality 43 Section 5.4 Antitrust Laws 43 Section 5.5 Employee Compensation 44 Section 5.6 Indemnity; Directors’ and Officers’ Insurance; Fiduciary and Employee Benefit Insurance 44 Section 5.7 Press Release 45 Section 5.8 Expenses; Transfer Taxes 45 Section 5.9 Preservation of Records 46 Section 5.10 Tax Matters 46 Section 5.11 Investigation by Parent; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityOther Representations; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees Reliance of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written 46 Section 5.12 Notification 47 Section 5.13 Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 Stockholders 47 Section 5.14 Financing Assistance 47 Section 5.15 Financing 49 Section 5.16 280G 50 Article VI SURVIVAL 50 Section 6.1 Survival 50 Article VII TERMINATION 51 Section 7.1 Termination of Certain Agreements and Rights 64 5.15 51 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses52 Article VIII MISCELLANEOUS 53 Section 8.1 Extension; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Waiver 53 Section 8.2 Notices 53 Section 8.3 Entire Agreement 55 Section 8.4 Non-Survival Recourse; Release 55 Section 8.5 Binding Effect; Benefit; Assignment 56 Section 8.6 Amendment and Modification 56 Section 8.7 Counterparts 56 Section 8.8 Applicable Law 56 Section 8.9 Severability 57 Section 8.10 Specific Enforcement 57 Section 8.11 Waiver of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 AttorneysJury Trial 58 Section 8.12 Rules of Construction 58 Section 8.13 Schedules 59 Section 8.14 StockholdersFees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Representative 59 Section 8.15 Legal Representation 61 Annexes Annex A Company Subsidiary Schedule Annex B Equityholders Annex C Permitted Liens Schedule Annex D Working Capital Schedule Annex E 2015 CapEx Forecast Annex F Customer Sales Credit Exhibits Exhibit A Definitions Exhibit B-1 1 Form of Company Stockholder Support Certificate of Merger Exhibit 2 Form of Letter of Transmittal Exhibit 3 Form of Option Cancelation Acknowledgment Agreement Exhibit B-2 4 Form of Parent Stockholder Support Escrow Agreement Exhibit C-1 5 Form of Company Lock-Up Agreement Resolutions Terminating 401(k) Plan Exhibit C-2 6 Form of Parent Lock-Up Agreement Director Resignation Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F 7 Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire FIRPTA Certificate AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION This Agreement and Plan of Merger (this “Agreement”) is made and entered into dated as of July 213, 2022, 2015 by and among SILVERBACK THERAPEUTICSMediFAX-EDI, INC.LLC, a Delaware corporation Tennessee limited liability company (“Parent”), SABRE MERGER SUBAlto Merger Sub Inc., INC. a Delaware corporation and wholly a wholly-owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSAltegra Health, INC.Inc., a Delaware corporation (the “Company”), and Parthenon Investors III, L.P., a Delaware limited partnership, solely in its capacity as the representative of the Equityholders (the “Stockholders’ Representative”). Certain capitalized terms used in this Agreement Each of Parent, Merger Sub, the Company and, solely for purposes of representing the Equityholders, the Stockholders’ Representative are defined in Exhibit A.referred to herein as a “Party”.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Emdeon Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 27 3.1 Due Organization; No Subsidiaries 27 3.2 Organizational Documents 27 28 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 31 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 3.10 Title to Assets 32 3.12 3.11 Real Property; Leasehold 32 3.13 33 3.12 Intellectual Property 33 3.14 3.13 Agreements, Contracts and Commitments 35 3.15 3.14 Compliance; Permits; Restrictions 36 3.16 37 Page 3.15 Legal Proceedings; Orders 38 3.17 39 3.16 Tax Matters 38 3.18 39 3.17 Employee and Labor Matters; Benefit Plans 40 3.19 Plans. 41 3.18 Environmental Matters 43 3.20 44 3.19 Transactions with Affiliates 44 3.21 3.20 Insurance 44 3.22 3.21 No Financial Advisors 44 3.23 45 3.22 Anti-Bribery 44 3.24 45 3.23 Valid Issuance 44 3.25 45 3.24 Opinion of Financial Advisor 44 3.26 45 3.25 Disclaimer of Other Representations or Warranties 44 45 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 45 4.1 Operation of Parent’s Business 44 45 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 50 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 52 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 53 5.1 Proxy Statement 52 53 5.2 Company Information Statement; Stockholder Written Consent 53 54 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 Benefits; Parent Employees 59 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 61 5.9 Public Announcement 62 61 5.10 Listing 63 62 5.11 Tax Matters 63 62 5.12 Legends 63 62 5.13 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 63 5.15 Section 16 Matters 64 63 5.16 Cooperation 64 63 5.17 Allocation Certificates 64 63 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 64 5.20 Stockholder Litigation 65 64 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 64 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Governmental Approvals 65 6.5 Net Cash Determination 66 65 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 65 7.1 Accuracy of Representations 66 65 7.2 Performance of Covenants 66 65 Page 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 66 7.7 Accredited Investors 67 66 7.8 Company Stockholder Written Consent 67 66 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 66 SECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 66 8.1 Accuracy of Representations 67 66 8.2 Performance of Covenants 67 8.3 Documents 68 67 8.4 No Parent Material Adverse Effect 68 67 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 67 SECTION 9. TERMINATION 68 67 9.1 Termination 68 67 9.2 Effect of Termination 70 69 9.3 Expenses; Termination Fees 70 SELECTION 69 SECTION 10. MISCELLANEOUS PROVISIONS 72 71 10.1 Non-Survival of Representations and Warranties 72 71 10.2 Amendment 72 71 10.3 Waiver. 72 Waiver 71 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 72 10.5 Applicable Law; Jurisdiction 73 72 10.6 Attorneys’ Fees 73 72 10.7 Assignability 73 72 10.8 Notices 73 72 10.9 Cooperation 74 73 10.10 Severability 74 73 10.11 Other Remedies: ; Specific Performance 74 73 10.12 No Third Party Beneficiaries 75 74 10.13 Construction 75 74 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 C Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Securities Purchase Agreement Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire Exhibit H Parent 2023 Equity Incentive Plan Exhibit I Parent 2023 Employee Stock Purchase Plan Schedules: Schedule I Parent Net Cash Schedule II Parent Allocation Percentage AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July November 21, 2022, by and among SILVERBACK THERAPEUTICSGRAYBUG VISION, INC., a Delaware corporation (“Parent”), SABRE CAMARO MERGER SUB, INC. ., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALSCALCIMEDICA, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (Graybug Vision, Inc.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due OrganizationSection 5.01 Corporate Organization 48 Section 5.02 Governing Documents 49 Section 5.03 Capitalization 49 Section 5.04 Authority Relative to this Agreement 50 Section 5.05 No Conflict; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Filings and Consents 28 3.6 Capitalization 29 3.7 50 Section 5.06 Compliance 51 Section 5.07 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Statements; Xxxxxxxx-Xxxxx 51 Section 5.08 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 or Events 53 Section 5.09 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real PropertyLitigation 53 Section 5.10 Board Approval; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Vote Required 53 Section 5.11 No Prior Operations of Merger Sub 54 Section 5.12 Brokers 54 Section 5.13 Parent Trust Fund 54 Section 5.14 Employees 55 Section 5.15 Taxes 55 Section 5.16 Registration and Listing 56 Section 5.17 Prior Business Operations 57 Section 5.18 Parent Material Contracts 57 Section 5.19 Proxy Statement and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Registration Statement 57 Section 5.20 Investment Company Act 57 Section 5.21 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of 57 Section 5.22 Parent’s and Xxxxxx Sub’s Investigation and Reliance 57 ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER Section 6.01 Conduct of Business 44 4.2 Operation by the Company Pending the Merger 58 Section 6.02 Conduct of Business by Xxxxxx and Merger Sub Pending the CompanyMerger 62 Section 6.03 Claims Against Trust Account 64 ARTICLE VII ADDITIONAL AGREEMENTS Section 7.01 Proxy Statement; Registration Statement 65 Section 7.02 Parent Stockholders’ Meeting; Merger Sub Stockholder’s Business 47 4.3 Approval 66 Section 7.03 Requisite Approval 67 Section 7.04 Access and Investigation 49 4.4 Parent to Information; Confidentiality 67 Section 7.05 Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 68 Section 7.06 Exclusivity 69 Section 7.07 Employee Benefits Matters 69 Section 7.08 Directors’ and Officers’ Indemnification 70 Section 7.09 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement71 Section 7.10 Further Action; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Reasonable Best Efforts 71 Section 7.11 Public Announcement 62 5.10 Listing 63 5.11 Announcements 73 Section 7.12 Tax Matters 63 5.12 Legends 63 5.13 73 Section 7.13 Stock Exchange Listing 74 Section 7.14 Antitrust 74 Section 7.15 Trust Account 75 Section 7.16 Directors and Officers 63 5.14 Termination 75 Section 7.17 Equity Incentive Plan 75 Section 7.18 Related Party Agreements 75 Section 7.19 Parent Cash on Hand Calculation. 75 Section 7.20 Extension 76 Section 7.21 Assignment of Certain Agreements and Rights 64 5.15 Legacy Parent Transaction Expenses 76 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock7.22 At-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent LockThe-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.Market Facility 76

Appears in 1 contract

Samples: Merger Agreement and Plan of Reorganization (Breeze Holdings Acquisition Corp.)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 25 Section 4.1 Qualification, Organization, Subsidiaries, Capitalization 25 Section 4.2 Company Authority Relative to this Agreement; No Subsidiaries Violation 27 3.2 Organizational Documents 27 3.3 Authority; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Section 4.3 Reports and Financial Statements 28 Section 4.4 Internal Controls and Procedures 29 Section 4.5 No Undisclosed Liabilities 30 TABLE OF CONTENTS (continued) 3.8 Section 4.6 Compliance with Law; Permits 30 Section 4.7 Absence of Certain Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Propertyor Events 31 Section 4.8 Environmental Laws and Regulations 31 Section 4.9 Investigations; Leasehold 32 3.13 Litigation 31 Section 4.10 Investment Company 31 Section 4.11 Intellectual Property 33 3.14 Agreements, Contracts 32 Section 4.12 Properties 32 Section 4.13 Ownership and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Maintenance of Drilling Units 32 Section 4.14 Tax Matters 38 3.18 Employee 33 Section 4.15 Employment and Labor Matters; Matters 35 Section 4.16 Employee Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 36 Section 4.17 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 38 Section 4.18 Opinion of Financial Advisor 44 3.26 Disclaimer 38 Section 4.19 Material Contracts 39 Section 4.20 Finders or Brokers 40 Section 4.21 Anti-Bribery 40 Section 4.22 Export Controls and Sanctions 40 Section 4.23 No Additional Representations 41 ARTICLE V COVENANTS AND AGREEMENTS 42 Section 5.1 Conduct of Business by the Company 42 Section 5.2 Conduct of Business by Parent and Merger Sub 45 Section 5.3 Access 48 Section 5.4 No Solicitation 49 Section 5.5 Filings; Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF Actions 50 Section 5.6 Efforts; Regulatory Approvals 50 Section 5.7 Takeover Statutes 52 Section 5.8 Public Announcements 52 Section 5.9 Indemnification and Insurance 52 Section 5.10 Control of Operations 54 Section 5.11 Transaction Litigation 54 Section 5.12 Tax Matters 55 Section 5.13 Employee Matters 55 Section 5.14 Financing Matters 56 Section 5.15 Registration Rights Agreement 56 Section 5.16 Obligations of Merger Sub and the Surviving Company 56 Section 5.17 Buyout Notice 57 ARTICLE VI CONDITIONS TO THE PARTIES 44 4.1 Operation of ParentMERGER 57 Section 6.1 Conditions to Each Party’s Business 44 4.2 Operation Obligation to Effect the Merger 57 Section 6.2 Conditions to Obligation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees to Effect the Merger 57 Section 6.3 Conditions to Obligation of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants Merger Sub to Effect the Merger 58 5.6 Employee Benefits 60 5.7 Indemnification Section 6.4 Frustration of Officers and Directors 60 5.8 Additional Agreements 62 5.9 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Closing Conditions 58 ARTICLE VII TERMINATION 58 Section 7.1 Termination of Certain Agreements and Rights 64 5.15 or Abandonment 58 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. 59 ARTICLE VIII MISCELLANEOUS PROVISIONS 72 10.1 Non-59 Section 8.1 No Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; 59 Section 8.2 Expenses 60 Section 8.3 Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable LawEffectiveness 60 Section 8.4 Governing Law 60 Section 8.5 Jurisdiction; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 60 Section 8.6 WAIVER OF JURY TRIAL 61 Section 8.7 Notices 61 Section 8.8 Assignment; Binding Effect 62 Section 8.9 Severability 63 Section 8.10 Entire Agreement 63 Section 8.11 Amendments; Waivers 63 Section 8.12 Headings 63 Section 8.13 No Third Third-Party Beneficiaries 75 10.13 Construction 75 Exhibits: 63 Section 8.14 Interpretation 64 Section 8.15 Definitions 64 Annex I Index of Defined Terms Exhibit A Definitions Plan of Merger Exhibit B-1 B Form of Company Stockholder Support Registration Rights Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into ), dated as of July 21March 25, 20222021, is by and among SILVERBACK THERAPEUTICS, INC.Noble Corporation, a Delaware corporation Cayman Islands exempted company (“Parent”), SABRE MERGER SUBDuke Merger Sub, INC. LLC, a Delaware corporation and wholly owned subsidiary limited liability company incorporated under the laws of Parent the Cayman Islands (“Merger Sub”), and ARS PHARMACEUTICALS, INC.Pacific Drilling Company LLC, a Delaware corporation limited liability company incorporated under the laws of the Cayman Islands (“Company” and, together with the Parent and Merger Sub, the “CompanyParties”). Certain capitalized terms used in this Agreement are defined in Exhibit A..

Appears in 1 contract

Samples: Agreement and Plan of Merger (Noble Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due 20 5.1 Organization, Qualification, Standing and Power; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 Authority20 5.2 Parent Capitalization 2I 5.3 Authority Relative to this Agreement 21 5.4 Validity of Parent Merger Shares 22 5.5 Governmental Consents and Filings 22 5.6 Financial Statements 22 5.8 Compliance with Laws and Other Instruments; Binding Nature of Agreement 28 3.4 Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 Employee and Labor Matters; Benefit Plans 40 3.19 Environmental Matters 43 3.20 Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 Opinion of Financial Advisor 44 3.26 Disclaimer of Other Representations or Warranties 44 SECTION 4. CERTAIN COVENANTS OF THE PARTIES 44 4.1 Operation of Parent’s Business 44 4.2 Operation of the Company’s Business 47 4.3 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. Contravention 23 5.9 Disclosure 23 ARTICLE VI ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 23 6.1 Amendment to Stockholders Agreement 23 6.2 Legal Conditions to the Merger 23 6.3 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 24 6.4 Expenses 24 6.5 Additional Agreements 62 5.9 24 6.6 Public Announcement 62 5.10 Listing 63 5.11 Announcements 24 6.7 Confidentiality 25 6.8 Continuity of Business Enterprise 25 6.9 Tax Matters 63 5.12 Legends 63 5.13 Directors and Officers 63 5.14 Termination Free Merger 25 6.10 Celsys Net Working Capital 25 6.11 Sponsored Research Agreement 25 ARTICLE VII CLOSING DELIVERABLES 26 7.1 Conditions to Each Party’s Obligation to Effect the Merger 26 ARTICLE VIII INDEMNIFICATION 27 8.1 Indemnification Relating to Agreement 27 8.2 Third Party Claims 28 8.3 Tax Contests 29 8.4 Limitations 29 8.5 Binding Effect 30 8.6 Time Limit 30 8.7 Sole Remedy 30 8.8 Distribution of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Escrow Account 30 ARTICLE IX MISCELLANEOUS 31 9.1 Entire Agreement 31 9.3 Governing Law; Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-to Jurisdiction 31 9.4 Notices 32 9.5 Severability 33 9.6 Survival of Representations and Warranties 72 10.2 33 9.7 Assignment 33 9.8 Counterparts 33 9.9 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 33 9.10 Interpretation 33 9.11 Knowledge 33 9.12 Transfer, Sales, Documentary, Stamp and Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Similar Taxes 33 EXHIBITS EXHIBIT 1.1(A) — Certificate of Merger EXHIBIT 1.1(B) — Articles of Merger EXHIBIT 2.2(A) — Escrow Agreement EXHIBIT 2.2(B) — Escrow Shares EXHIBIT 2.3 — Form of Company Stockholder Support Surrender Certificate EXHIBIT 5.2(B) - Parent Second Amended and Restated Certificate of Incorporation EXHIBIT 6.1 — Amendment to Stockholders Agreement Exhibit B-2 Form of Parent Stockholder Support EXHIBIT 7.1(C) — Ladisch Employment Agreement Exhibit C-1 Form of Company Lock-Up EXHIBIT 7.1(E) — Purdue License Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION MERGER, dated as of October 26, 2007 (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC.Mascoma Corporation, a Delaware corporation (“Parent”), SABRE MERGER SUB; MASCOMA SUB I, INC. ., a Delaware corporation and wholly a wholly-owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS; CELSYS BIOFUELs, INC., a Delaware an Indiana corporation (“Celsys”); and the undersigned stockholders of Celsys (the “CompanyStockholders”). Certain capitalized terms used Intending to be legally bound, and in this Agreement are defined in Exhibit A.consideration of the mutual representations, warranties, covenants and agreements contained herein, Parent, Merger Sub, Celsys and the Stockholders agree as follows:

Appears in 1 contract

Samples: Agreement and Plan of Merger (Mascoma Corp)

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. 26 3.1 Due Organization37 4.1 Organization and Qualification 37 4.2 Subsidiaries 38 4.3 Capital Structure 38 4.4 Authority; No Subsidiaries 27 3.2 Organizational Documents 27 3.3 AuthorityConflict; Binding Nature of Agreement 28 3.4 Required Filings 40 4.5 Board Approval; Required Vote Required 28 3.5 Non-Contravention; Consents 28 3.6 Capitalization 29 3.7 41 4.6 SEC Filings; Financial Statements 30 TABLE OF CONTENTS (continued) 3.8 Absence of Changes 32 3.9 No Competitive Products 32 3.10 Xxxxxxxx-Xxxxx Act 41 4.7 Absence of Undisclosed Liabilities 32 3.11 Title to Assets 32 3.12 Real Property; Leasehold 32 3.13 Intellectual Property 33 3.14 42 4.8 Absence of Certain Changes or Events 42 4.9 Agreements, Contracts and Commitments 35 3.15 Compliance; Permits; 43 4.10 Compliance with Law 43 4.11 Material Permits 43 4.12 Litigation and Product Liability 44 4.13 Restrictions 36 3.16 Legal Proceedings; Orders 38 3.17 Tax Matters 38 3.18 on Business Activities 44 4.14 Employee and Labor Matters; Benefit Plans 40 3.19 45 4.15 Labor and Employment Matters 48 4.16 Registration Statement; Proxy Statement/Prospectus 49 4.17 Properties and Assets 49 4.18 Insurance 50 4.19 Taxes 51 4.20 Environmental Matters 43 3.20 51 4.21 Intellectual Property 53 4.22 Certain Business Practices 56 4.23 Government Contracts 56 4.24 Brokers 56 4.25 Interested Party Transactions with Affiliates 44 3.21 Insurance 44 3.22 No Financial Advisors 44 3.23 Anti-Bribery 44 3.24 Valid Issuance 44 3.25 57 4.26 Opinion of Financial Advisor 44 3.26 Disclaimer 57 4.27 Interim Operations of Other Representations or Warranties 44 SECTION 4Merger Sub 57 4.28 Ownership of Company Common Stock 57 4.29 Parent Rights Agreement 57 4.30 Full Disclosure 57 5. CERTAIN COVENANTS CONDUCT OF BUSINESS PENDING THE PARTIES 44 4.1 Operation MERGER 58 5.1 Conduct of Parent’s Business 44 4.2 Operation by Company Pending the Merger 58 5.2 Conduct of Business by Parent Pending the Company’s Business 47 4.3 Merger 60 5.3 No Solicitation of Transactions 62 6. ADDITIONAL AGREEMENTS 65 6.1 Proxy Statement/Prospectus; Registration Statement 65 6.2 Meeting of Company Stockholders 66 6.3 Meeting of Parent Stockholders 66 6.4 Access and Investigation 49 4.4 Parent Non-Solicitation 50 4.5 Company Non-Solicitation 51 4.6 to Information; Confidentiality 67 6.5 Commercially Reasonable Best Efforts; Further Assurances 67 6.6 Board of Directors 68 6.7 Notification of Certain Matters 51 4.7 Potentially Transferable Assets 52 4.8 Termination of Employees of Parent 52 TABLE OF CONTENTS (continued) SECTION 5. ADDITIONAL AGREEMENTS OF THE PARTIES 52 5.1 Proxy Statement 52 5.2 Company Information Statement; Stockholder Written Consent 53 5.3 Parent Stockholders’ Meeting 55 5.4 Regulatory Approvals 57 5.5 Company Options and Company Warrants 58 5.6 Employee Benefits 60 5.7 Indemnification of Officers and Directors 60 5.8 Additional Agreements 62 5.9 68 6.8 Public Announcement 62 5.10 Listing 63 5.11 Tax Matters 63 5.12 Legends 63 5.13 Announcements 69 6.9 Directors and Officers 63 5.14 Termination of Certain Agreements and Rights 64 5.15 Section 16 Matters 64 5.16 Cooperation 64 5.17 Allocation Certificates 64 5.18 Company Financial Statements 64 5.19 Takeover Statutes 65 5.20 Insurance 69 6.10 Stockholder Litigation 65 SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY 65 6.1 No Restraints 65 6.2 Stockholder Approval 65 6.3 70 6.11 Nasdaq Listing 65 6.4 Government Approvals 65 6.5 Net Cash Determination 66 SECTION 7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB 66 7.1 Accuracy of Representations 66 7.2 Performance of Covenants 66 7.3 Documents 66 7.4 FIRPTA Certificate 66 7.5 No Company Material Adverse Effect 66 7.6 Termination of Investor Agreements 67 7.7 Accredited Investors 67 7.8 Company Stockholder Written Consent 67 7.9 Dissenting Shares 67 7.10 Company New Drug Application 67 7.11 Company Lock-Up Agreements 67 TABLE OF CONTENTS (continued) SELECTION 8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY 67 8.1 Accuracy of Representations 67 8.2 Performance of Covenants 67 8.3 Documents 68 8.4 No Parent Material Adverse Effect 68 8.5 Parent Net Cash 68 8.6 Parent Lock-Up Agreements 68 SELECTION 9. TERMINATION 68 9.1 Termination 68 9.2 Effect of Termination 70 9.3 Expenses; Termination Fees 6.12 Celltrion Subsidiary 70 SELECTION 10. MISCELLANEOUS PROVISIONS 72 10.1 Non-Survival of Representations and Warranties 72 10.2 Amendment 72 10.3 Waiver. 72 10.4 Entire Agreement; Counterparts; Exchanges by Electronic Transmission 73 10.5 Applicable Law; Jurisdiction 73 10.6 Attorneys’ Fees 73 10.7 Assignability 73 10.8 Notices 73 10.9 Cooperation 74 10.10 Severability 74 10.11 Other Remedies: Specific Performance 74 10.12 No Third Party Beneficiaries 75 10.13 Construction 75 Exhibits: Exhibit A Definitions Exhibit B-1 Form of Company Stockholder Support Agreement Exhibit B-2 Form of Parent Stockholder Support Agreement Exhibit C-1 Form of Company Lock-Up Agreement Exhibit C-2 Form of Parent Lock-Up Agreement Exhibit D Company Warrants Exhibit E Post-Closing Officers and Directors Exhibit F Form of Company Stockholder Written Consent Exhibit G Investor Questionnaire AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of July 21, 2022, by and among SILVERBACK THERAPEUTICS, INC., a Delaware corporation (“Parent”), SABRE MERGER SUB, INC. a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), and ARS PHARMACEUTICALS, INC., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A.6.13 Fixed Assets 71

Appears in 1 contract

Samples: Agreement and Plan of Merger (Vaxgen Inc)

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