Merger II. (i) The Certificate of Formation of Intermediate Holdings as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the Certificate of Formation of Surviving Entity II following Merger II.
(ii) The Limited Liability Company Agreement of Intermediate Holdings as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the Limited Liability Company Agreement of Surviving Entity II following Merger II.
Merger II. (a) Immediately after the Effective Time, Parent will cause the Surviving Corporation to merge with and into Merger Sub II, the separate corporate existence of the Surviving Corporation shall thereupon cease, Merger Sub II shall continue as the surviving entity (the “Surviving Company”) and all of the rights and obligations of the Surviving Corporation under this Agreement shall be deemed the rights and obligations of the Surviving Company. Merger II shall have the effects set forth in this Agreement, the DGCL and Section 18-209(g) of the LLC Act. As of the Second Effective Time, the certificate of formation and operating agreement of the Surviving Company shall be in the forms attached hereto as Exhibit A and Exhibit B, respectively.
(b) Parent shall take all actions as may be necessary such that (i) the directors of the Surviving Corporation immediately prior to the Second Effective Time shall be the directors of the Surviving Company from and after the Second Effective Time and (ii) the officers of the Surviving Corporation immediately prior to the Second Effective Time shall be the officers of the Surviving Company from and after the Second Effective Time, in the case of clause (i) or (ii), as applicable, until their respective successors shall have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Surviving Company’s certificate of formation and operating agreement and applicable Law.
Merger II. (a) Immediately after the Effective Time, Parent will cause the Merger I Surviving Corporation to merge with and into Merger Sub II, the separate corporate existence of the Merger I Surviving Corporation shall thereupon cease, and Merger Sub II shall continue as the surviving corporation (the “Ultimate Surviving Corporation”). Merger II shall have the effects set forth in this Agreement and the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Second Effective Time, the Ultimate Surviving Corporation will possess all of the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions, disabilities and duties of the Merger I Surviving Corporation and Merger Sub II, to the fullest extent provided under the DGCL.
(b) At the Second Effective Time, the certificate of incorporation and the bylaws of Merger Sub II as in effect immediately prior to the Second Effective Time shall be the certificate of incorporation and bylaws of the Ultimate Surviving Corporation until thereafter amended in accordance with the provisions thereof and applicable Law, except that references to Merger Sub II’s name shall be replaced by references to “Volumetric Biotechnologies, Inc.”
(c) The directors of Merger Sub II immediately prior to the Second Effective Time shall, from and after the Second Effective Time, be the directors of the Ultimate Surviving Corporation, and the officers of Merger Sub II immediately prior to the Second Effective Time shall, from and after the Second Effective Time, be the officers of the Ultimate Surviving Corporation, in each case until their respective successors shall have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the Ultimate Surviving Corporation’s certificate of incorporation, bylaws and applicable Law.
Merger II. Immediately after the Merger I Effective Time, on the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Merger II Effective Time, (a) the Merger I Surviving Corporation will merge with and into Merger Sub II, and (b) the separate corporate existence of the Merger I Surviving Corporation will cease and Merger Sub II will continue its corporate existence under the DGCL as the surviving corporation in Merger II (sometimes referred to herein as “Merger II Surviving Company”).
Merger II. Immediately following the consummation of Merger I, upon the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the DGCL, at the Merger II Effective Time, the Intermediate Surviving Corporation shall be merged with and into NewCo. As a result of Merger II, the separate corporate existence of the Intermediate Surviving Corporation shall cease and NewCo shall continue as the Surviving Entity.
Merger II. (i) The Certificate of Incorporation of Pubco as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the Certificate of Incorporation of Surviving Entity II following Merger II.
(ii) The By-Laws of Pubco as in effect immediately preceding Effective Time II shall remain unchanged as a result of Merger II and shall continue as the By-Laws of Surviving Entity II following Merger II.
Merger II. Immediately following the Effective Time, and as part of an integrated transaction, Surviving Corporation and Merger Sub II shall file with the Secretary of State of the State of Delaware a certificate of merger (“Certificate of Merger II” and each of which, including the Certificate of Merger I, may be referred to as a “Certificate of Merger”) executed in accordance with, and containing such information as is required by the relevant provisions of the Delaware General Corporation Law in order to effect Merger II. Merger II shall become effective at the time Certificate of Merger II shall have been duly filed with, and accepted by, the Secretary of State of the State of Delaware or such later date and time as is agreed upon by the parties and specified in Certificate of Merger II (such date and time hereinafter referred to as the “Second Effective Time”). As promptly as practicable following the Second Effective Time, Surviving Corporation and Merger Sub II shall file with the Secretary of State of the State of California a certificate of approval of merger satisfying the applicable requirements of the CGCL (the filing of which, for the avoidance of doubt, is not required to effect Merger II).
Merger II. (a) No fewer than three (3) business days prior to the Scheduled Closing Date, Parent shall deliver to the Company a certificate, executed by an executive officer of Parent, that (i) no temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of Merger II shall have been issued by any court of competent jurisdiction and remain in effect, (ii) to the Knowledge of Parent, there exists no fact, condition or circumstance preventing the consummation of Merger II and (iii) to the Knowledge of Parent, there shall not be any Legal Requirement enacted or deemed applicable to Merger II that makes consummation of Merger II illegal or ineffective.
(b) Immediately following the Effective Time of Merger I, Merger Sub II shall file with the Secretary of State of the State of Delaware a properly executed certificate of merger for Merger II conforming to the requirements of the DGCL.
Merger II. Immediately following the Merger I Effective Time, on the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL and the DLLCA, the Intermediate Surviving Entity shall merge with and into Merger Sub II (“Merger II” and, together with Merger I, the “Mergers”), whereupon the separate corporate existence of the Intermediate Surviving Entity will cease and Merger Sub II will continue its limited liability company existence under the DLLCA as the surviving entity in Merger II (the “Surviving Entity”). As a result of Mxxxxx XX, the Surviving Entity will become a direct wholly-owned Subsidiary of Parent. Merger II shall be consummated pursuant to the DGCL and the DLLCA and have the effects set forth in this Agreement, the Merger II Certificate of Merger, and the applicable provisions of the DGCL and the DLLCA.
Merger II. Merger II shall be treated as an “assets-over” merger of HPP with and into Holdings within the meaning of Treasury Regulation Section 1.708-1(c)(3)(i) with Holdings as the continuing partnership within the meaning of Section 708 of the Code and Treasury Regulation Section 1.708-1(c) and HPP terminated as of Effective Time II.
