QSFT » Topics » V. GENERAL

This excerpt taken from the QSFT DEF 14A filed Jan 15, 2009.



5.1 Covenants of Quest (Delaware). Quest (Delaware) covenants and agrees that it will, on or before the Effective Date of the Merger:


(a) qualify to do business as a foreign corporation in the State of California and in connection therewith appoint an agent for service of process as required under the provisions of Section 2105 of the CGCL;


(b) file the Certificate of Merger with the Secretary of State of the State of Delaware;


(c) file this Agreement, together with the Certificate of Ownership, or the Certificate of Merger, with the Secretary of State of the State of California; and


(d) take such other actions as may be required by the CGCL.


5.2 Further Assurances. From time to time, as and when required by Quest (Delaware) or by its successors or assigns, there shall be executed and delivered on behalf of Quest such deeds and other instruments, and there shall be taken or caused to be taken by Quest (Delaware) and Quest such further and other actions as shall be appropriate or necessary to vest or perfect in or conform of record or otherwise by Quest (Delaware) the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Quest and otherwise to carry out the purposes of this Agreement, and the officers and directors of Quest (Delaware) are fully authorized in the name and on behalf of Quest or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.


5.3 Abandonment. At any time before the Effective Date of the Merger, this Agreement may be terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of either Quest or of Quest (Delaware), or of both, notwithstanding the approval of the principal terms of this Agreement by the shareholders of Quest or the adoption of this Agreement by the sole shareholder of Quest (Delaware), or by both.


5.4 Amendment. The Boards of Directors of the Constituent Corporations may amend this Agreement at any time prior to the Effective Date of the Merger, provided that an amendment made subsequent to applicable shareholder or shareholder approval shall not, unless approved by such shareholders or shareholders as required by law: (a) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such Constituent Corporation; (b) alter or change any term of the Restated Certificate of Incorporation of the Surviving Corporation to be effected by the Merger; or (c) alter or change any of the terms and conditions of this Agreement if such alteration or change would adversely affect the holders of any class or series of capital stock of any Constituent Corporation.



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5.5 Governing Law. This Agreement shall in all respects be construed, interpreted and enforced in accordance with and governed by the laws of the State of Delaware and, so far as applicable, the merger provisions of the CGCL.


5.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.


IN WITNESS WHEREOF, this Agreement having first been approved by the resolutions of the Board of Directors of Quest, a California corporation, and Quest (Delaware), Inc., a Delaware corporation, is hereby executed on behalf of each of such two corporations and attested by their respective officers thereunto duly authorized.


QUEST SOFTWARE, INC., a California corporation

Douglas F. Garn

President and Chief Executive Officer


David P. Cramer

Vice President, General Counsel and Secretary

QUEST SOFTWARE, INC., a Delaware corporation

Douglas F. Garn

President and Chief Executive Officer



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This excerpt taken from the QSFT DEF 14A filed Apr 10, 2008.



The EIP provides for incentive compensation to certain executive officers and key employees of Quest. The material terms of the EIP are summarized below. This summary, however, does not purport to be a complete description of the EIP. The EIP has been filed with the SEC as Appendix B to this Proxy Statement and may be accessed from the SEC’s website at www.sec.gov. The following summary is qualified in its entirety by reference to the complete text of the EIP.


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