limited liability
company, partnership, association or other business entity gains or losses or
Control such entity.
(b) Each of the following terms is defined in the section set forth opposite
such term:
Term
Section
Accounting Referee
1.10(d) Agreement
Opening Paragraph Bankruptcy and
Equity Exceptions
2.2(a) Closing
1.3 Closing Company Debt
1.10(b)
Closing Date
1.3 Closing Date Merger Consideration
1.7(a) Closing Payment
Schedule
1.7(f) Closing Statement
1.10(b) Closing Working Capital
1.10(b) Company
Opening Paragraph Company Base Balance Sheet
2.6(a)
Company Board
Recitals Company D&O Indemnified Party
4.10(b) Company
Disclosure Schedule
2 (Preamble) Company Executives
4.2(c) Company
Financial Statements
2.6(a) Company Indemnified Parties
7.2(b) Company
Intellectual Property Assets
2.14(b)(i) Company Share Rollover
4.2(a)
Company Stockholders
1.7(a) Company Stockholder Approval
2.28 Company
Trade Secrets
2.14(a)(viii) Contribution Agreement
4.2(a) Copyrights
2.14(b)(ii)(C) Customer
2.23 Customer Retention Rate
2.23 DGCL
Recitals
Disputed Claims
8.1(b) Dissenting Shares
1.8(a) Effective Time
1.3
Employees
2.16(a)
6
Term
Section
Employee Benefit Program
2.19(a) Environmental Laws
2.22 ERISA
2.19(a)
Escrow Agent
1.7(e)(ii) Escrow Agreement
1.7(e)(ii) Estimated Company Debt
1.10(a) Estimated Working Capital
1.10(a) Executive Employment Agreements
4.2(c) Expiration Date
7.1(b) Final Company Debt
1.10(g) Final Working
Capital
1.10(g) Fundamental Company Representations
7.1(b) Fundamental
Parent Representations
7.1(c) Governmental Authority
2.2(a) Guarantor
Opening Paragraph Hazardous Material
2.22 Indemnified Party
7.4(a)
Indemnifying Party
7.4(a) Insurance Policies
2.20 Intellectual Property
Assets
2.14(b)(ii) Interim Period
4.1 IRS
2.12(a) KDW
5.2(k) Letter
of Transmittal
1.7(a) Losses
7.2(a) Marks
2.14(b)(ii)(B) Material
Contracts
2.13 Merger
1.2 Merger Consideration
1.7(a) Merger Filing
1.3 Merger Sub
Opening Paragraph Most Recent Balance Sheet
2.6(a) Net
Estimated Working Capital
1.10(f)(i) Net Final Working Capital
1.10(f)(i)
Net Adjusted Working Capital Shortfall Amount
1.10(f)(ii) New Equity
Incentive Plan
4.9 Option Cancellation
1.7(a) Parent
Opening Paragraph
Parent Disclosure Schedule
3 (Preamble) Parent Indemnified Parties
7.2(a)
Patents
2.14(b)(ii)(A) Paying Agent
1.7(e)(i) Paying Agent Agreement
1.7(e)(i)
7
Term
Section
Permits
2.17 Permitted Encumbrances
2.11(a) Pre-Closing Tax Period
2.12(h) Principal Stockholders
Recitals Products
2.14(b)(iii) PPA Escrow
Amount
1.7(e)(ii) Registered Intellectual Property
2.14(a)(ii) Required
Consents
2.2(b) Restrictive Covenant Agreement
4.2(c) Rollover Participant
4.2(a) SEC
2.15(b) Short Period
4A.3 Special Tax Provisions
7.2(c)
Stockholder Agreement
4.2(b) Stockholder Closing Documents
1.7(a)
Stockholder Indemnifying Parties
7.2(a) Stockholder Representative
Opening Paragraph Stockholder Representative Expense Fund
1.7(e)(iii)
Straddle Period
2.12(h) Support Agreement
Recitals Surviving Corporation
1.2 Tail Period
4.10(a) Target Working Capital
1.7(a) Taxes
2.12(a)
Tax Returns
2.12(a) Termination Date
6.1(c) Third Party Claim
7.4(a)
Third Party Claim Notice
7.4(a) Third Party Rights
2.14(a)(iii) Threshold
7.3(a) Trade Secrets
2.14(b)(ii)(D) Transaction Expenses
9.11 Warrant
Cancellation
1.7(a) Workers
2.16(a)
1.2 The Merger. At the Effective Time, and subject to and upon the terms and
conditions of this Agreement and the provisions of the DGCL, Merger Sub shall be
merged with and into the Company (the "Merger"), the separate corporate
existence of Merger Sub shall cease, and the Company shall continue as the
surviving corporation and as a wholly owned subsidiary of Parent. The surviving
corporation after the Merger is sometimes referred to herein as the "Surviving
Corporation."
8
1.3 Effective Time. Unless this Agreement