REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Parent and Merger Sub represent and warrant to the Company as follows:
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Except as (i) set forth in the Parent Disclosure Schedule, to the extent permitted in accordance with Section 10.16 or (ii) disclosed in the Parent SEC Documents (excluding risk factors or any forward-looking language), Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as of the date of this Agreement and as of the Closing Date (other than the representations and warranties which are as of a specified date, which speak only as of such date), as follows:
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Parent and Merger Sub represent and warrant to the Company and the Company Stockholders as set forth in this Article 4, subject to any exceptions expressly stated in the disclosure schedule delivered by Parent to the Company dated as of the date hereof and certified by a duly authorized officer of Parent (the “Parent Disclosure Schedule”). Exceptions on the Parent Disclosure Schedule shall specifically identify the representation to which they relate; provided, however, that any matter disclosed pursuant to one section or subsection of the Parent Disclosure Schedule is deemed disclosed for such other sections or subsections of the Parent Disclosure Schedule as, and only to the extent that, it is reasonably apparent that such matter relates to such other section or subsection of the Parent Disclosure Schedule and the level of particularity and manner of disclosure of the matter expressly disclosed in one section or subsection of the Parent Disclosure Schedule would make a reasonable person aware that such disclosure is relevant to such other sections or subsections.
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Each of Parent and Merger Sub represents and warrants to the Company as set forth in this Article 4 subject to any exceptions expressly stated in the disclosure schedule delivered by Parent and Merger Sub to the Company dated as of the date hereof (the “Parent Disclosure Schedule”), that:
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Ultimate Parent, Parent and Merger Sub each hereby represent and warrant to the Company that, except as set forth on the corresponding sections or subsections of the disclosure schedules delivered to the Company by Parent concurrently with entering into this Agreement (the “Parent Disclosure Schedule”), it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Schedule shall also be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such item is reasonably apparent on the face of such disclosure:
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Each of Parent and Merger Sub hereby represents and warrants to the Company as follows as of the date hereof and as of the Closing Date (except for such representations and warranties which address matters only as of a specific date, which representations and warranties shall be true and correct as of such specific date):
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. 53 5.1 Organization and Power; Ownership of Merger Sub; No Prior Activities 53 5.2 Authorization 53 5.3 Absence of Conflicts 53 5.4 Litigation 54 5.5 Brokerage. 54 5.6 Valid Issuance of Parent Shares 54 5.7 SEC Filings; Financial Statements 54 Article 6 ADDITIONAL COVENANTS AND AGREEMENTS 55 6.1 Required Stockholder Approval 55 6.2 Mutual Assistance 55 6.3 Press Release and Announcements; Confidentiality 55 6.4 Expenses 55 6.5 Representative 56 6.6 Distribution Waterfall 58 6.7 Tax Matters 58 Article 7 INDEMNIFICATION 60 7.1 Survival 60 7.2 Agreement to Indemnify 60 7.3 Limitations 62 7.4 Indemnification Procedures 63 7.5 Losses 66 7.6 Treatment of Indemnification Payments 67 7.7 No Circular Recovery 67 Article 8 MISCELLANEOUS 67 8.1 Amendment and Waiver 67 8.2 Notices 68 8.3 Assignment 69 8.4 Severability 69 8.5 No Strict Construction 69 8.6 Captions 69 8.7 No Third-Party Beneficiaries 69 8.8 Complete Agreement 70 8.9 Counterparts 70 8.10 Governing Law and Jurisdiction 70 8.11 Waiver of Jury Trial 70 8.12 Specific Performance 70 iii LIST OF EXHIBITS Exhibits Exhibit A Distribution Waterfall Exhibit B Form of D&O Policy Exhibit C Form of Certificate of Merger Exhibit D Amended and Restated Bylaws Exhibit E Form of Joinder Agreement Exhibit F Form of Stock Option Cancellation and Payment Agreement Exhibit G Form of Payment Agreement Exhibit H Form of Investor Questionnaire Exhibit I Form of Lock-Up Agreement Exhibit J Form of Restrictive Covenant Agreement Exhibit K Form of Stockholder Consent Schedule A Net Working Capital Schedule Schedule B Earnout Consideration Defined Terms AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of May 28, 2021, by and among Mitek Systems, Inc., a Delaware corporation (“Parent”), Ibis Merger Sub, Inc., a New York corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), ID R&D, Inc., a New York corporation (the “Company”), and Xxxxxx Xxxxxxx, solely in his capacity as representative of the Equityholders, Bonus Recipients and Convertible Noteholders appointed pursuant to Section 6.5 (the “Representative”). Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings given to such terms in Article 1.
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. As an inducement to the Company to enter into this Agreement and consummate the transactions contemplated hereby, Parent and Merger Sub represent and warrant to the Company as of the Closing as follows:
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Parent hereby represents and warrants to Company as of the Closing Date that the following facts and circumstances are true, accurate and complete.
REPRESENTATIONS AND WARRANTIES REGARDING PARENT AND MERGER SUB. Parent and Merger Sub, jointly and severally, hereby represent and warrant to the Company that the statements set forth in this Article VIII are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date as though made then (except to the extent such representations and warranties refer to another date, in which case such representations and warranties are made solely as of such other date).
