Closing and Closing Payments. 2.1 The Closing 10 2.2 Closing Conditions 10 2.3 Payment of Total Closing Consideration 13 2.4 Payment of Post-Closing Adjustment to Total Closing Consideration 16 2.5 Withholding Taxes 17 2.6 Reliance 17 3.1 Organization and Good Standing 18 3.2 Authority and Enforceability 18 3.3 Governmental Approvals 19 3.4 Conflicts 19 3.5 Company Capital Structure 19 3.6 Company Subsidiaries 21 3.7 Company Financial Statements; Internal Financial Controls 22 3.8 No Undisclosed Liabilities 22 3.9 No Changes 23 3.10 Tax Matters 23 3.11 Real Property 25 3.12 Tangible Property 26 3.13 Intellectual Property 26 3.14 Material Contracts 31 3.15 Employee Benefit Plans 33 3.16 Employment Matters 35 3.17 Governmental Authorizations 37 3.18 Litigation 37 3.19 Insurance 37 3.20 Compliance with Laws 37 3.21 Top Customers and Suppliers 38 3.22 Interested Party Transactions 39 3.23 Books and Records 39 3.24 Brokers 39 3.25 Banking Relationships 39 3.26 Information Statement 39 3.27 No Other Representations 40 Page 4.1 Organization and Standing 40 4.2 Authority and Enforceability 40 4.3 Governmental Approvals 40 4.4 Non-Reliance 40 4.5 Solvency 41 4.6 No Prior Activities of Merger Sub 41 4.7 Financing 41 4.8 Brokers 41 5.1 Conduct of Company Business 41 5.2 Restrictions on Company Activities 42 6.1 Termination of Discussions 44 6.2 No Solicitation 45 6.3 Notice of Alternative Transaction Proposals 45 6.4 Specific Performance 45 7.1 Shareholder Approvals 45 7.2 Governmental Approvals 46 7.3 Third-Party Contracts 47 7.4 Reasonable Best Efforts to Close 47 7.5 Employee Matters 48 7.6 Tax Matters 49 7.7 Certain Taxes and Fees 51 7.8 Payoff Letters and Release of Liens 51 7.9 Third-Party Expenses 51 7.10 Preparation of Financial Statements 52 7.11 Access to Information 52 7.12 Notification of Certain Matters 53 7.13 Director and Officer Insurance and Indemnification 53 7.14 Financing Cooperation 54 7.15 Trade Compliance 55 Page 8.1 Termination 55 8.2 Effect of Termination 56 9.1 Survival of Representations and Warranties 56 9.2 Indemnification 57 9.3 Limitations on Indemnification 58 9.4 Escrow Fund 60 9.5 Indemnification Claim Procedures 61 9.6 Defense of Third Party Claims 62 10.1 Appointment and Authority of Securityholder Representative 63 10.2 Exculpation and Indemnification of Securityholder Representative 64 10.3 Expense Cash 65 11.1 Certain Interpretations 66 11.2 Notices 67 11.3 Confidentiality 68 11.4 Public Disclosure 68 11.5 Amendment 68 11.6 Extension and Waiver 69 11.7 Assignment 69 11.8 Severability 69 11.9 Specific Performance and Other Remedies 69 11.10 Governing Law 70 11.11 Exclusive Jurisdiction 70 11.12 Waiver of Jury Trial 70 11.13 USA Patriot Act Compliance 70 11.14 Entire Agreement 70 11.15 Counterparts 70 11.16 Consent to Representation; Conflict of Interest 70 Annex Description Annex A Certain Defined Terms Exhibit Description Exhibit A Form of Escrow Agreement Exhibit B Form of Payment Agent Agreement Exhibit C Form of Shareholder Consent Exhibit D Form of Joinder Agreement Schedules Schedule A Support Shareholders Schedule B Sample Working Capital Statement Schedule C Key Employees Schedule D Knowledge Persons Schedule 2.2(b)(x)(A) Forms of Non-Disclosure and Assignment Agreement & Code of Conduct Schedule 2.2(b)(x)(B) Forms of Offer Letters Schedule 2.2(b)(xi) Terminated Shareholder Agreements Schedule 7.5(a) Specified IP Contributors Schedule 7.6(g) Tax Refunds Schedule 7.8(a) Payoff Letters Schedule 7.8(b) Liens to be Released Schedule 9.2(a)(viii) Scheduled Matters THIS MERGER AGREEMENT (this “Agreement”) is made and entered into as of January 5, 2021 (the “Agreement Date”) by and among F5 Networks, Inc., a Washington corporation (the “Buyer”), Voyager Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Buyer (“Merger Sub”), Volterra, Inc., a Delaware corporation (the “Company”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the security holder representative, agent and attorney in fact of the Indemnifying Parties (the “Securityholder Representative”). All capitalized terms that are used but not defined herein shall have the respective meanings ascribed thereto in Annex A.
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)
Closing and Closing Payments. 2.1 The Closing 10 11 2.2 Closing Conditions 10 12 2.3 Payment of Total Closing Consideration 13 16 2.4 Payment of Post-Closing Adjustment to Total Closing Consideration 16 20 2.5 Withholding Taxes 17 21 2.6 Reliance 17 22 3.1 Organization and Good Standing 18 23 3.2 Authority and Enforceability 18 23 3.3 Governmental Approvals 19 24 3.4 Conflicts 19 24 3.5 Company Capital Structure 19 25 3.6 Company Subsidiaries 21 27 3.7 Company Financial Statements; Internal Financial Controls 22 28 3.8 No Undisclosed Liabilities 22 29 3.9 No Changes 23 29 3.10 Tax Matters 23 29 3.11 Real Property 25 33 3.12 Tangible Property 26 34 3.13 Intellectual Property 26 34 3.14 Material Contracts 31 41 3.15 Employee Benefit Plans 33 44 3.16 Employment Matters 35 47 3.17 Governmental Authorizations 37 49 3.18 Litigation 37 49 3.19 Insurance 37 49 3.20 Compliance with Laws 37 49 3.21 Top Customers and Suppliers 38 51 3.22 Interested Party Transactions 39 52 3.23 Books and Records 39 52 3.24 Brokers 39 52 3.25 Banking Relationships 39 53 3.26 Information Statement 39 53 3.27 No Other Representations 40 Page 53 4.1 Organization and Standing 40 53 4.2 Authority and Enforceability 40 53 4.3 Governmental Approvals 40 54 4.4 Financing 54 4.5 Non-Reliance 40 4.5 55 4.6 Solvency 41 4.6 No Prior Activities of Merger Sub 41 4.7 Financing 41 4.8 Brokers 41 55 5.1 Conduct of Company Business 41 56 5.2 Restrictions on Company Activities 42 56 6.1 Termination of Discussions 44 60 6.2 No Solicitation 45 61 6.3 Notice of Alternative Transaction Proposals 45 61 6.4 Specific Performance 45 7.1 Shareholder Approvals 45 7.2 Governmental Approvals 46 7.3 Third-Party Contracts 47 7.4 Reasonable Best Efforts to Close 47 7.5 Employee Matters 48 7.6 Tax Matters 49 7.7 Certain Taxes and Fees 51 7.8 Payoff Letters and Release of Liens 51 7.9 Third-Party Expenses 51 7.10 Preparation of Financial Statements 52 7.11 Access to Information 52 7.12 Notification of Certain Matters 53 7.13 Director and Officer Insurance and Indemnification 53 7.14 Financing Cooperation 54 7.15 Trade Compliance 55 Page 8.1 Termination 55 8.2 Effect of Termination 56 9.1 Survival of Representations and Warranties 56 9.2 Indemnification 57 9.3 Limitations on Indemnification 58 9.4 Escrow Fund 60 9.5 Indemnification Claim Procedures 61 9.6 Defense of Third Party Claims 62 10.1 Appointment and Authority of Securityholder Representative 63 10.2 Exculpation and Indemnification of Securityholder Representative 64 10.3 Expense Cash 65 11.1 Certain Interpretations 66 11.2 Notices 67 11.3 Confidentiality 68 11.4 Public Disclosure 68 11.5 Amendment 68 11.6 Extension and Waiver 69 11.7 Assignment 69 11.8 Severability 69 11.9 Specific Performance and Other Remedies 69 11.10 Governing Law 70 11.11 Exclusive Jurisdiction 70 11.12 Waiver of Jury Trial 70 11.13 USA Patriot Act Compliance 70 11.14 Entire Agreement 70 11.15 Counterparts 70 11.16 Consent to Representation; Conflict of Interest 70 Annex Description Annex A Certain Defined Terms Exhibit Description Exhibit A Form of Escrow Agreement Exhibit B Form of Payment Agent Agreement Exhibit C Form of Shareholder Consent Exhibit D Form of Joinder Agreement Schedules Schedule A Support Shareholders Schedule B Sample Working Capital Statement Schedule C Key Employees Schedule D Knowledge Persons Schedule 2.2(b)(x)(A) Forms of Non-Disclosure and Assignment Agreement & Code of Conduct Schedule 2.2(b)(x)(B) Forms of Offer Letters Schedule 2.2(b)(xi) Terminated Shareholder Agreements Schedule 7.5(a) Specified IP Contributors Schedule 7.6(g) Tax Refunds Schedule 7.8(a) Payoff Letters Schedule 7.8(b) Liens to be Released Schedule 9.2(a)(viii) Scheduled Matters THIS MERGER AGREEMENT (this “Agreement”) is made and entered into as of January 5, 2021 (the “Agreement Date”) by and among F5 Networks, Inc., a Washington corporation (the “Buyer”), Voyager Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Buyer (“Merger Sub”), Volterra, Inc., a Delaware corporation (the “Company”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the security holder representative, agent and attorney in fact of the Indemnifying Parties (the “Securityholder Representative”). All capitalized terms that are used but not defined herein shall have the respective meanings ascribed thereto in Annex A.61
Appears in 1 contract
Sources: Merger Agreement (F5 Networks, Inc.)