MERGER AGREEMENT
This Merger Agreement, dated as of _____day of __________, 20____, (this
“Agreement”), is entered into by and between Investigroup LLC,(“Investigroup LLC”), and
Investigroup, Inc., (the “Company”).
RECITALS
A. The Company has an authorized capital of 110,000,000, shares of common stock, par
value of $0.00001 per share (“Old Common Stock”), of which 110,000,000 shares are issued and
outstanding.
B. At the Effective Time (defined below), all of the shares of Old Common Stock are
owned by Investigroup LLC, its sole stockholder.
C. In connection with the initial public offering of the Company’s common stock (the
“IPO”), the parties desire to merge, immediately prior to the closing of the IPO, the Company
with and into Investigroup LLC, pursuant to which the Company will continuing as the surviving
corporation and the separate existence of Investigroup LLC will cease, upon the terms and
subject to the conditions set forth in this Agreement (the “Merger”).
D. The board of directors of the Company and the manager of Investigroup LLC have each
determined that the Merger is advisable and in the best interest of the Company and Investigroup
LLC and have each approved and adopted this Agreement and recommended that the respective
equity holders of the Company and Investigroup LLC approve and adopt this Agreement and
approve the Merger.
E. The holders of the voting equity of each of the Company and Investigroup LLC have
unanimously approved and adopted this Agreement and the Merger.
NOW, THEREFORE, in consideration of the premises and the respective representations,
warranties, covenants and agreements set forth in this Agreement, Investigroup LLC and the
Company agree as follows:
I. THE MERGER
1.1 Merger. In accordance with the provisions of this Agreement and the Delaware General
Corporation Law (the “DGCL”) at the Effective Time (as defined below), the Company will be
merged with and into Investigroup LLC, Investigroup LLC’s separate existence will cease and
the Company will be the surviving corporation in the Merger and shall succeed to and assume all
the rights and obligations of Investigroup LLC. The Company, as the surviving corporation after
the Merger, is herein sometimes referred to as the “Surviving Corporation.”
1.2 Filing and Effectiveness. Immediately prior to the closing of the IPO, the parties will
cause a Certificate of Merger (the “Certificate of Merger”), to be executed and filed with the
Secretary of State of the State of Delaware. The Merger will become effective at the time when
the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware
(the “Effective Time”).
1.3 Effects of the Merger.
(a) General. The Merger will have the effects specified in Section 259 of the DGCL.
(b) Certificate of Incorporation and Bylaws. At the Effective Time, the Company’s
certificate of incorporation shall be amended and restated and shall continue to be the
certificate of incorporation of the Surviving Corporation until thereafter amended in
accordance with the provisions thereof and applicable law. The Company’s bylaws as in
effect immediately prior to the Effective Time (the “Bylaws”) will be the Surviving
Corporation’s bylaws until thereafter amended in accordance with the provisions thereof
and applicable law.
(c) Directors and Officers. Following the Effective Time, the directors of the Company
immediately prior to the Effective Time shall be the directors of the Surviving Corporation,
and the officers of the Company immediately prior to the Effective Time shall be the
officers of the Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified or until their earlier death, resignation, retirement,
disqualification or removal in accordance with applicable law and the Certificate of
Incorporation and Bylaws.
(d) Effect on Capital Stock. At and as of the Effective Time, without any action on the
part of Investigroup LLC or the Company, as the case may be, or of any holder of any
shares of capital stock of or other equity interest in Investigroup LLC or the Company, the
shares of capital stock and other securities of Investigroup LLC and the Company will be
treated as follows:
(i) Cancellation of Old Common Stock. Each share of Old Common Stock
outstanding immediately prior to the Effective Time will be canceled without payment
of any consideration therefor and shall cease to exist.
(ii) Conversion of the Membership Interests. All the Membership Interests issued
and outstanding immediately prior to the Effective Time will be converted into and
exchanged for [ ] validly issued, fully paid and nonassessable shares of the
common stock of the Surviving Corporation, par value $0.00001 per share (“Surviving
Common Stock”).
(iii) Surrender of Old Common Stock. At or before the Effective Time,
Investigroup LLC shall surrender any and all outstanding certificates representing
shares of Old Common Stock to the Surviving Corporation.
1.4 Taking of Necessary Action; Further Action. Prior to the Effective Time, the
Company and Investigroup LLC shall take all such action as shall be necessary or appropriate to
effectuate the Merger. If, at any time after the Effective Time, any such further action is
necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving
Corporation with full right, title and possession to all assets, property, rights, privileges, powers,
and franchises of the Company and Investigroup LLC, the officers and directors of the Surviving
Corporation are fully authorized, in the name of and on behalf of the Company and Investigroup
LLC, to take, and the Company will cause them to take, all such lawful and necessary action.
II. GENERAL
2.1 Termination. Investigroup LLC and the Company, by written agreement, may
terminate this Agreement as to all parties and the Merger may be abandoned for any reason
whatsoever, at any time prior to the Effective Time.
2.2 No Third Party Beneficiaries. There are no third party beneficiaries having rights
under or with respect to this Agreement.
2.3 Governing Law. This Plan shall be construed in accordance with and governed by the
laws of the State of Delaware, without regard to the conflict of laws provisions thereof.
2.4 Amendments. This Agreement may not be amended or modified except by a writing
signed by all of the parties.
2.5 Entire Agreement. This Agreement embodies the entire agreement and understanding
of the parties hereto with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, oral or written, relative to said subject matter.
Whenever the context requires, words used in the singular shall be construed to include the plural
and vice versa, and pronouns of any gender shall be deemed to include and designate the
masculine, feminine and neuter gender.
2.6 Counterparts. This Agreement may be executed in two or more counterparts, each of
which will be deemed to be an original and all of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
authorized representative as of the date stated in the introductory paragraph of this Agreement.
INVESTIGROUP, LLC
By:
Name:
Title:
INVESTIGROUP, INC
By:
Name:
Title:
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