Common use of Formation of Merger Sub Clause in Contracts

Formation of Merger Sub. Certificate of Incorporation and Bylaws of ------------------------------------------------------------------- Surviving Corporation. --------------------- (a) Prior to the Effective Time, MCS and NetIQ agree to take such action as is necessary to amend this Agreement to add Merger Sub as a party. NetIQ agrees to take such action as is necessary to cause Merger Sub to perform the various covenants and agreements contained herein which are contemplated herein to be performed by Merger Sub. Any covenants or agreements of Merger Sub contained herein shall be binding on such entity as of the time such entity becomes a party to this Agreement. (b) The Certificate of Incorporation of Merger Sub as in effect immediately prior to the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation until thereafter amended as provided by law and such Certificate of Incorporation; provided, however, that the name of the Surviving Corporation shall be changed to Mission Critical Software Inc. (c) The Bylaws of Merger Sub as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation until thereafter amended. (d) At the Effective Time, NetIQ shall take all necessary actions to change its name to such name as shall be agreed by MCS and NetIQ.