Merger II Clause Samples

Merger II. (a) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the provisions of the MGCL and the MLLCA, immediately after the First Effective Time, the Merger I Surviving Corporation shall be merged with and into Merger Sub II. As a result of Merger II, the separate corporate existence of the Merger I Surviving Corporation shall thereupon cease, and Merger Sub II shall be the surviving company of Merger II and a directly wholly owned Subsidiary of Parent (the “Merger II Surviving Company”). Merger II shall be effected pursuant to the MGCL and the MLLCA and shall have the effects set forth in this Agreement, Section 3-114 of the MGCL, Section 4A-709 of the MLLCA and any other applicable provisions of the MGCL and the MLLCA. Without limiting the generality of the foregoing, upon the consummation of Merger II, all of the property, rights, privileges, immunities, powers and franchises of the Merger I Surviving Corporation and Merger Sub II shall vest in the Merger II Surviving Company, and all of the debts, liabilities and duties of the Merger I Surviving Corporation and Merger Sub II shall become the debts, liabilities and duties of the Merger II Surviving Company, in each case, as provided under the MGCL and the MLLCA. (b) Upon the consummation of Merger II, by virtue of M▇▇▇▇▇ ▇▇ and without the necessity of further action by the Merger I Surviving Corporation or any other Person, the articles of organization of Merger Sub II as in effect immediately prior to the Second Effective Time shall be the articles of organization of the Merger II Surviving Company until thereafter changed or amended as provided therein or by applicable Law. Parent shall take all required actions so that, effective as of the Second Effective Time, the limited liability company agreement of the Merger II Surviving Company as in effect immediately prior to the Second Effective Time shall be amended and restated to read in its entirety in the form of the limited liability company agreement set forth on Exhibit A and, as so amended and restated, shall be the limited liability company agreement of the Merger II Surviving Company until thereafter changed or amended as provided therein and by applicable Law (and subject to Section 5.07).

Merger II. (a) Immediately after the Effective Time, Parent will cause the Surviving Corporation to merge with and into Merger Sub II, the separate corporate existence of the Surviving Corporation shall thereupon cease, Merger Sub II shall continue as the surviving entity (the “Surviving Company”) and all of the rights and obligations of the Surviving Corporation under this Agreement shall be deemed the rights and obligations of the Surviving Company. Merger II shall have the effects set forth in this Agreement, the DGCL and Section 18-209(g) of the LLC Act. As of the Second Effective Time, the certificate of formation and operating agreement of the Surviving Company shall be in the forms attached hereto as Exhibit A and Exhibit B, respectively. (b) Parent shall take all actions as may be necessary such that (i) the directors of the Surviving Corporation immediately prior to the Second Effective Time shall be the directors of the Surviving Company from and after the Second Effective Time and (ii) the officers of the Surviving Corporation immediately prior to the Second Effective Time shall be the officers of the Surviving Company from and after the Second Effective Time, in the case of clause (i) or (ii), as applicable, until their respective successors shall have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Surviving Company’s certificate of formation and operating agreement and applicable Law.

Merger II. (a) Immediately after the Effective Time, Parent will cause the Merger I Surviving Corporation to merge with and into Merger Sub II, the separate corporate existence of the Merger I Surviving Corporation shall thereupon cease, and Merger Sub II shall continue as the surviving corporation (the “Ultimate Surviving Corporation”). Merger II shall have the effects set forth in this Agreement and the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Second Effective Time, the Ultimate Surviving Corporation will possess all of the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions, disabilities and duties of the Merger I Surviving Corporation and Merger Sub II, to the fullest extent provided under the DGCL. (b) At the Second Effective Time, the certificate of incorporation and the bylaws of Merger Sub II as in effect immediately prior to the Second Effective Time shall be the certificate of incorporation and bylaws of the Ultimate Surviving Corporation until thereafter amended in accordance with the provisions thereof and applicable Law, except that references to Merger Sub II’s name shall be replaced by references to “Volumetric Biotechnologies, Inc.” (c) The directors of Merger Sub II immediately prior to the Second Effective Time shall, from and after the Second Effective Time, be the directors of the Ultimate Surviving Corporation, and the officers of Merger Sub II immediately prior to the Second Effective Time shall, from and after the Second Effective Time, be the officers of the Ultimate Surviving Corporation, in each case until their respective successors shall have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Ultimate Surviving Corporation’s certificate of incorporation, bylaws and applicable Law.

Merger II. Upon the terms and subject to the conditions set forth in this Agreement, at the Second Effective Time, by virtue of Merger II and without any action on the part of Parent, Merger Sub II, the Merger I Surviving Corporation or the holders of any shares of the common stock of the Merger I Surviving Corporation or limited liability company interests of Merger Sub II, (i) each share of Merger I Surviving Corporation Common Stock issued and outstanding immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist without any conversion thereof or payment therefor and (ii) each limited liability company interest of Merger Sub II issued and outstanding immediately prior to the Second Effective Time shall remain unchanged and outstanding following Merger II.

Merger II. Immediately following the consummation of Merger I, upon the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the DGCL, at the Merger II Effective Time, the Intermediate Surviving Corporation shall be merged with and into NewCo. As a result of Merger II, the separate corporate existence of the Intermediate Surviving Corporation shall cease and NewCo shall continue as the Surviving Entity.

Merger II. Immediately after the Merger I Effective Time, on the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Merger II Effective Time, (a) the Merger I Surviving Corporation will merge with and into Merger Sub II, and (b) the separate corporate existence of the Merger I Surviving Corporation will cease and Merger Sub II will continue its corporate existence under the DGCL as the surviving corporation in Merger II (sometimes referred to herein as “Merger II Surviving Company”).

Merger II. At the Second Effective Time, by virtue of Merger II and without any action on the part of Parent, Merger Sub II, the Merger I Surviving Corporation or the holders of any shares of the common stock of the Merger I Surviving Corporation or limited liability company interests of Merger Sub II, (i) each share of Merger I Surviving Corporation Common Stock issued and outstanding immediately prior to the Second Effective Time shall automatically be canceled and shall cease to exist without any conversion thereof or payment therefor and (ii) each limited liability company interest of Merger Sub II issued and outstanding immediately prior to the Second Effective Time shall remain unchanged and outstanding following Merger II.

Merger II. (i) The Certificate of Incorporation of Pubco as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the Certificate of Incorporation of Surviving Entity II following Merger II. (ii) The By-Laws of Pubco as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the By-Laws of Surviving Entity II following Merger II.

Merger II. At the Second Effective Time, the certificate of incorporation of Merger Sub II shall be amended and restated to conform to the certificate of incorporation of the Surviving Corporation as in in effect immediately prior to the Second Effective Time and shall thereafter be the certificate of incorporation of the Surviving Corporation II until thereafter amended in accordance with the provisions thereof and applicable Law. At the Second Effective Time, the bylaws of Merger Sub II shall be the bylaws of the Surviving Corporation II until thereafter amended in accordance with the provisions thereof and applicable Law.