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$QNBC
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8-K
Sep 23, 4:12 PM ET
QNB CORP. 8-K
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Contents
77
ARTICLE ICertain Definitions
1.01. Certain Definitions. The following terms are used in this Agreement with the meanings set forth below:
ARTICLE IIThe Merger
2.01. The Parent Merger.
2.02. Effectiveness of Parent Merger. At and after the Effective Time, the Parent Merger shall have the effects prescribed in the PABCL.
2.03. Effective Date and Effective Time. On or (if agreed by the Company and Parent) prior to the Closing Date, Parent and the Company shall cause to be filed the statement of merger with the PADOS. The Parent Merger shall become effective (such date, the “Effective Date”) upon the later to occur of the following: (i) the filing of the statement of merger with the PADOS; or (ii) such later date and time as may be set forth in such statement of merger (such time hereinafter referred to as the “Effective Time”).
2.04. Closing. Subject to the terms and conditions of this Agreement, the closing of the Merger (the “Closing”) will occur by electronic exchange of documents at 10:00 am, Quakertown, Pennsylvania time, on a date as soon as reasonably practicable to be mutually agreed upon by Parent and the Company, and after the satisfaction or waiver (subject to applicable law) of the latest to occur of the conditions set forth in Article VII hereof (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or waiver thereof). The date on which the Closing occurs is referred to as the “Closing Date”.
2.05. The Bank Merger.
ARTICLE IIIMerger Consideration
3.01. Conversion of the Company Common Stock.
3.02. Exchange and Payment Procedures.
3.03. Company Options.
3.04. Company Restricted Stock Awards.
3.05. Dissenters’ Rights Shares.
3.06. Tax Consequences. For federal income tax purposes, the Parent Merger is intended to constitute a reorganization within the meaning of Section 368(a) of the Code. The parties hereto adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulation Section 1.368‑2(g).
ARTICLE IVRepresentations and Warranties
4.01. Representations and Warranties of the Company. Except as disclosed in the disclosure schedule delivered by the Company to Parent concurrently herewith (the “Company Disclosure Schedule”) (it being understood that (a) the mere inclusion of an item in the Company Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by the Company that such item represents a material exception or fact, event or circumstance or that such item is reasonably likely to result in a Material Adverse Effect and (b) any disclosures made with respect to a section of Section 4.01 shall be deemed to qualify (i) any other section of Section 4.01 specifically referenced or cross-referenced in such disclosure and (ii) any other sections of Section 4.01 to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections), the Company hereby represents and warrants to Parent as follows:
4.02. Representations and Warranties of Parent. Except (a) as disclosed in the disclosure schedule delivered by Parent to the Company concurrently herewith (the “Parent Disclosure Schedule”) (it being understood that (i) the mere inclusion of an item in the Parent Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by Parent that such item represents a material exception or fact, event or circumstance or that such item is reasonably likely to result in a Material Adverse Effect and (ii) any disclosures made with respect to a section of Section 4.02 shall be deemed to qualify (A) any other section of Section 4.02 specifically referenced or cross-referenced in such disclosure and (B) any other sections of Section 4.02 to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections), or (b) as disclosed in any Parent’s SEC Reports filed with or furnished to the SEC by Parent since December 31, 2024, and prior to the date hereof (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly non‑specific or cautionary, predictive or forward-looking in nature, and except with respect to matters that relate to the representations and warranties contained in Sections 4.02(a), 4.02(b), 4.02(d)(ii), 4.02(k) and 4.02(n)), Parent hereby represents and warrants to the Company as follows:
ARTICLE VActions Pending Consummation of Merger
5.01. Forbearances of the Company. From the date hereof until the Effective Time or earlier termination of this Agreement, except as expressly contemplated or permitted by this Agreement (including as set forth in Section 5.01 of the Company Disclosure Schedule (it being understood that any disclosures made with respect to a subsection of this Section 5.01 shall be deemed to qualify (1) any other subsection of this Section 5.01 specifically referenced or cross-referenced, and (2) any other subsections of this Section 5.01 to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other subsections)) or as required by law or
regulation or by any Governmental Authority or as required by an applicable Regulatory Order, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to:
5.02. Forbearances of Parent. From the date hereof until the Effective Time or earlier termination of this Agreement, except as expressly contemplated or permitted by this Agreement (including as set forth in Section 5.02 of the Parent Disclosure Schedule (it being understood that any disclosures made with respect to a subsection of this Section 5.02 shall be deemed to qualify (1) any other subsection of this Section 5.02 specifically referenced or cross-referenced, and (2) any other subsections of this Section 5.02 to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other subsections)) or as required by law or regulation or by any Governmental Authority or as required by an applicable Regulatory Order, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause its Subsidiaries not to:
ARTICLE VICovenants
6.01. Commercially Reasonable Efforts. Subject to the terms and conditions of this Agreement, each of the Company and Parent shall use its commercially reasonable efforts in good faith to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws, so as to permit consummation of the Merger as promptly as practicable and otherwise to enable consummation of the transactions contemplated hereby and shall cooperate fully with the other party hereto to that end.
6.02. Shareholder Approval.
6.03. Registration Statement; Joint Proxy Statement/Prospectus.
6.04. Public Announcements. Neither the Company nor Parent shall, and neither the Company nor Parent shall permit any of their respective Subsidiaries to, issue or cause the publication of any press release or other public announcement with respect to, or otherwise make any public statement, or, except as otherwise specifically provided in this Agreement, any disclosure of nonpublic information to a third party, concerning, the transactions contemplated by this Agreement without the prior consent (which shall not be unreasonably withheld, conditioned or delayed) of Parent, in the case of a proposed announcement, statement or disclosure by the Company, or the Company, in the case of a proposed announcement, statement or disclosure by Parent; provided that either Parent or the Company may, without the prior consent of the other party (but after prior consultation with the other party to the extent practicable under the circumstances) issue or cause the publication of any press release or other public announcement to the extent required by applicable law or by the rules of the SEC, OTC or applicable stock exchange on which its securities are listed or Governmental Entity or, with respect to Section 6.06, for statements that are reasonably necessary to confirm its rights under this Agreement with respect to any litigation between the parties.
6.05. Access; Information.
6.06. Acquisition Proposal.
6.07. Takeover Laws. No party hereto shall take any action that would cause the transactions contemplated by this Agreement or the Support Agreements to be subject to requirements imposed by the Takeover Law and each of them shall take all necessary steps within its control to exempt (or ensure the continued exemption of) this Agreement, the Support Agreements and the transactions contemplated by this Agreement from or, if necessary, challenge the validity or applicability of, the Takeover Law, as now or hereafter in effect.
6.08. Certain Policies. A reasonable time before the Effective Time and subject to the proviso below, the Company shall, upon the request of Parent, (i) modify and change its loan, investment portfolio, asset liability management and real estate valuation policies and practices (including, but not limited to, loan classifications and levels of reserves) so that such policies and practices may be applied on a basis that is consistent with those of Parent, and (ii) evaluate the need for any reserves including, but not limited to, reserves relating to any outstanding litigation, any Tax audits or any liabilities to be incurred upon cancellation of any contracts as a result of the Merger; provided, however, that the Company shall not be obligated to take any such action pursuant to this Section 6.08 unless and until Parent acknowledges that all conditions to its obligation to consummate the Merger have been satisfied (including, but not limited to, the receipt of the regulatory approvals required by Section 7.01(b)) and certifies to the Company that Parent’s representations and warranties, subject to Section 4.02, are true and correct as of such date and
that Parent is otherwise in material compliance with this Agreement; provided further, however, that the Company shall not be obligated to take any such action pursuant to this Section 6.08 if such action would be clearly inconsistent with GAAP or applicable law. The Company’s representations, warranties and covenants contained in this Agreement shall not be deemed to be untrue or breached in any respect for any purpose as a consequence of any modifications or changes undertaken solely on account of this Section 6.08.
6.09. Regulatory Applications.
6.10. Employment Matters; Employee Benefits.
6.11. Notification of Certain Matters; Disclosure Supplements.
6.12. Data Conversion. To the extent permitted by applicable law, from and after the date hereof, the parties shall use their commercially reasonable efforts to facilitate data sharing and the integration of the Company with the business of Parent following consummation of the transactions contemplated hereby, and shall meet on a regular basis to discuss and plan for the conversion of the data processing and related electronic information technology system (the “Data Conversion”) to those used by Parent. The Company agrees to use all commercially reasonable efforts to promptly commence and aid Parent preparations for implementation of the Data Conversion. The parties agree to cooperate in preparing for the Data Conversion, including by providing reasonable access to data, information systems, and personnel having expertise with their and their respective Subsidiaries’ information and data systems.
6.13. Consents. The Company shall use its reasonable best efforts to obtain any required consents to the transactions contemplated by this Agreement, which are set forth in Section 6.13 of the Company Disclosure Schedules.
6.14. Insurance Coverage. The Company shall cause the policies of insurance listed in the Company Disclosure Schedule to remain in effect until the Effective Time.
6.15. Dividends. In the calendar quarter in which the Closing occurs, each of Parent and the Company shall coordinate with the other the declaration of any dividends in respect of Parent Common Stock and the Company Common Stock and the record dates and payment dates relating thereto, it being the intention of the parties hereto that holders of the Company Common Stock shall not receive two dividends, or fail to receive one dividend, in any quarter with respect to their shares of the Company Common Stock and any shares of Parent Common Stock any such holder receives in exchange therefor in the Merger.
6.16. Confidentiality. Except for the use of information in connection with the Joint Proxy Statement/Prospectus described in Section 6.03 hereof and any other governmental filings required in order to complete the transactions contemplated by this Agreement, all information (collectively, the “Information”) received by each of the Company and Parent pursuant to the terms of this Agreement shall be kept in strictest confidence and not used for any purpose other than a mutually acceptable transaction contemplated hereby; provided that, subsequent to the mailing of the Joint Proxy Statement/Prospectus to the shareholders of the Company, this Section 6.16 shall not apply to Information included in the Joint Proxy Statement/Prospectus to be sent to the shareholders of the Company under Section 6.03. The Company and Parent agree that the Information will be used only for the purpose of completing the transactions contemplated by this Agreement. The Company and Parent agree to hold the Information in strictest confidence and shall not use such Information for any purpose other than a mutually acceptable transaction contemplated hereby, and shall not disclose directly or indirectly any of such Information except when, after and to the extent such Information (i) is or becomes generally available to the public other than through the failure of the Company or Parent to fulfill its obligations hereunder, (ii) is demonstrated as already known to the party receiving the Information on a nonconfidential basis
prior to the disclosure, or (iii) is subsequently disclosed to the party receiving the Information on a nonconfidential basis by a third party having no obligation of confidentiality to the party disclosing the Information, provided nothing herein shall prohibit a party from making any disclosure required by law. In the event the transactions contemplated by this Agreement are not consummated, the Company and Parent agree to return upon request all copies of the Information (including all copies, summaries, memorandum thereof) provided to the other promptly and destroy all electronic copies of such Information.
6.17. Regulatory Matters. Parent, the Company and each of their Subsidiaries shall cooperate and each of them agrees to use its reasonable best efforts to remediate any order, decree, formal or informal agreement, memorandum of understanding or similar agreement by the Company or any Subsidiary with, or a commitment letter, board resolution or similar submission by the Company or any Subsidiary to, or supervisory letter from any Regulatory Authority to the Company or Subsidiary, to the satisfaction of such Regulatory Authority.
6.18. Indemnification.
6.19. Environmental Assessments. The Company hereby agrees to permit Parent to engage, at the expense of Parent, a qualified consultant, mutually agreeable to the Company and Parent, to conduct a Phase I Environmental Site Assessment in accordance with the requirements of ASTM E1527‑05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Practice” (“Phase I”) or such other lesser standard of review as determined by Parent in its sole discretion, of each parcel of real estate owned by the Company or any Subsidiary, including real estate acquired by Victory Bank, upon foreclosure.
6.20. Litigation and Claims. Each of Parent and the Company shall, to the extent permitted under applicable law and regulation, promptly notify the other party in writing of any action, arbitration, audit, hearing, investigation, litigation, suit, subpoena or summons issued, commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority or arbitrator pending or, to the Knowledge of Parent or the Company, as applicable, threatened against Parent, the Company or any of their respective Subsidiaries or any of their current or former directors or executive officers relating to the transactions contemplated by this Agreement (“Litigation”), and shall give the other party the opportunity to participate (at such other’s party’s expense) in the defense or settlement of any such Litigation. Each party shall give the other the right to review and comment on all filings or responses to be made by such party in connection with any such Litigation, and will in good faith take such comments into account. No party shall agree to settle any such Litigation without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that the other party shall not be obligated to consent to any settlement which does not include a full release of such other party and its Affiliates or which imposes an injunction or other equitable relief after the Effective Time upon the Surviving Corporation or any of its Affiliates.
6.21. Delisting. The Company shall take, or cause to be taken, all actions necessary to remove the Company Common Stock from quotation on OTC, effective as of the Effective Time.
6.22. Listing. Parent shall use its commercially reasonable efforts to cause the shares of Parent Common Stock to be issued in connection with the Merger to be listed on OTC, subject to official notice of issuance, prior to the Effective Time.
6.23. Board Seats. Prior to the Effective Time, but effective only as of the Effective Time and contingent upon Closing, Parent shall appoint Joseph W. Major, a current member of the Company Board, and one other current member of the Company Board (together with Mr. Major, the “Company Directors”) to the Parent Board to fill a vacancy in Class I and Class III of directors slate, or otherwise increase the size of the board of Parent by two (2) to effectuate the Company Director inclusion in the Class I and Class III of directors slate, subject to fiduciary duties of the Parent Board, with Mr. Major being appointed as a Class I director. Parent shall, subject to its standard corporate governance practices and the standard director evaluation, selection and nomination process of Parent’s nominating committee, nominate and recommend the Company Directors, for election at the next applicable annual meeting of the shareholders of Parent following the Effective Time at which such class of the Parent Board is up for election (as applicable, the “Next Annual Meeting”). Additionally, Parent Board shall, subject to Parent’s standard corporate governance practices and the standard director evaluation, selection and nomination process of Parent’s nominating committee, consider, in good faith, adding an additional current member of the Company Board (the “Additional Company Director”) to the Parent Board to fill a vacancy in Class II of directors slate, or otherwise increase the size of the board of Parent by one (1) to effectuate the Additional Company Director inclusion in Class II of directors slate if the Additional Company Director is added. Parent shall, subject to fiduciary duties of the Parent Board, nominate and recommend the Additional Company Director, for election at the Next Annual Meeting. Parent shall (a) cause each of the Company Directors and, if appointed, the Additional Company Director, subject to fiduciary duties of the Parent Board, to serve on the board of directors of QNB Bank so long as such individual serves on the Parent Board, (b) cause each of the Parent Board and the board of directors of QNB Bank to waive any director retirement age or director qualification limitations in any of the organizational or governance documents, policies or procedures of Parent or QNB Bank, as applicable, to effectuate the appointments and renominations set forth in this Section 6.23, (c) solely to the extent Mr. Major is elected to, and serves the entirety of, a second term as a director of the Federal Home Loan Bank of Pittsburgh (the “FHLB‑Pittsburgh”) following the expiration of his current term as a director of the FHLB‑Pittsburgh on December 31, 2025, take all actions necessary to ensure that Mr. Major serves as a director of QNB Bank for the time period required for him to complete two (2) additional consecutive terms as a director of the FHLB‑Pittsburgh, and (d) upon the Effective Time, (1) amend the Parent Bylaws and the bylaws of QNB Bank to establish the position of Vice Chair of the Parent Board and the Board of Directors of QNB Bank and (2) appoint Mr. Major as Vice Chair of the Parent Board and as Chair of the Strategic Planning Committee of the Parent Board and as Vice Chair the board of directors of QNB Bank.
6.24. Absence of Control. It is the intent of the parties to this Agreement that Parent, by reason of this Agreement, shall not be deemed (until consummation of the transactions contemplated herein) to control, directly or indirectly, the Company or any of its Subsidiaries and shall not exercise or be deemed to exercise, directly or indirectly, a controlling influence over the management or policies of the Company or any of its Subsidiaries. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
6.25. Tax Treatment.
6.26. Treatment of Company Debt. Upon the Effective Time, Parent shall assume the due and punctual performance and observance of the covenants and other obligations to be performed by Parent, under the definitive documents governing the indebtedness and other instruments related thereto set forth on Section 6.26 of the Company Disclosure Schedule, including the due and punctual payment of the principal of (and premium, if any) and interest thereon, to the extent required and permitted thereby.
6.27. Estoppel Certificates. After the receipt of the last to be obtained of either the Requisite Company Vote and the regulatory approvals required by Section 7.01(b) of this Agreement, the Company shall use commercially reasonably efforts to obtain an estoppel certificate, in such form as is acceptable to Parent, for each lease agreement set forth in Section 4.01(t) of the Company Disclosure Schedule from the applicable counterparty for the benefit of Parent.
ARTICLE VIIConditions to Consummation of the Merger
7.01. Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each of Parent and the Company to consummate the Merger is subject to the
fulfillment or written waiver by Parent and the Company, as the case may be, prior to the Effective Time of each of the following conditions:
7.02. Conditions to Obligation of the Company. The obligation of the Company to consummate the Merger is also subject to the fulfillment or written waiver by the Company prior to the Effective Time of each of the following conditions:
7.03. Conditions to Obligation of Parent. The obligation of Parent to consummate the Merger is also subject to the fulfillment or written waiver by Parent prior to the Effective Time of each of the following conditions:
ARTICLE VIIITermination
8.01. Termination. This Agreement may be terminated at any time prior to the Effective Time, whether before or after receipt of the Requisite Company Vote and the Requisite Parent Vote:
8.02. Effect of Termination and Abandonment; Enforcement of Agreement.
ARTICLE IXMiscellaneous
9.01. No Survival. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time, except for Section 6.18 and for those other obligations, covenants and agreements contained herein and therein which by their terms apply in whole or in part after the Effective Time.
9.02. Amendment. Subject to compliance with applicable law, this Agreement may be amended by the parties hereto at any time before or after the receipt of the Requisite Company Vote and the Requisite Parent Vote; provided, however, that after the receipt of the Requisite Company Vote and the Requisite Parent Vote, there may not be, without further approval of such shareholders of the Company, any amendment of this Agreement that requires such further approval under applicable law. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed on behalf of each of the parties.
9.03. Extension; Waiver.
9.04. Counterparts. This Agreement may be executed in counterparts (including by electronic means), all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
9.05. Confidential Supervisory Information. Notwithstanding any other provision of this Agreement, no disclosure, representation, or warranty shall be made (or other action taken) pursuant to this Agreement that would involve the disclosure of confidential supervisory information (including “confidential supervisory information” as defined in any regulation or rule adopted or promulgated by a Regulatory Authority) by any party to this Agreement to the extent prohibited by applicable law. To the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances in which the limitations of the preceding sentence apply.
9.06. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to any applicable conflicts of law principles. Each party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby exclusively in any federal or state court located in Philadelphia County, Pennsylvania (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 9.09.
9.07. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT THE PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.07.
9.08. Expenses. Each party hereto will bear all expenses incurred by it in connection with this Agreement and the transactions contemplated hereby.
9.09. Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (i) on the date of delivery if delivered personally, or if by email, upon confirmation of receipt, (ii) on the first (1st) business day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (iii) on the earlier of confirmed receipt or the fifth (5th) business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
9.10. Entire Understanding. This Agreement, the Bank Merger Agreement, the Support Agreements and any separate agreement entered into by the parties on even date herewith represent the entire understanding of the parties hereto with reference to the transactions contemplated
hereby and thereby and this Agreement supersedes any and all other oral or written agreements heretofore made (other than such Support Agreements or any such separate agreement).
9.11. Assignment; Third-Party Beneficiaries.
9.12. Interpretation. The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or” shall not be exclusive. References to “the date hereof” shall mean the date of this Agreement.
9.13. Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached. Accordingly, the parties shall be entitled to specific performance of the terms of this Agreement, including an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the parties’ obligation to consummate the Merger), in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereby further waives (i) any defense in any action for specific performance that a remedy at law would be adequate and (ii) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief.
9.14. Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.
9.15. Delivery by Electronic Transmission. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by e‑mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of e‑mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through e‑mail delivery of a “.pdf” format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.