Conditions to the Obligations of Parent and Subco. The obligations of each of Parent and Subco to complete the Arrangement are subject to the satisfaction or, if permitted by applicable Law, waiver by Parent and Subco of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its covenants, agreements and obligations hereunder required to be performed by it at or prior to the Effective Time; (ii) each of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except that each representation and warranty qualified by materiality or by Company Material Adverse Effect shall be true in all respects) as of the Closing Date as if made at and as of such time, except to the extent that a representation or warranty is made as of a specific date, in which case, such representation or warranty shall be true and correct in all material respects (except that each representation and warranty qualified by materiality or by Company Material Adverse Effect shall be true in all respects) as of such date; and (iii) Parent and Subco shall have received a certificate signed by an executive officer of the Company as to the satisfaction of the conditions set forth in this Section 6.02(a); (b) since the date of this Agreement, no event shall have occurred which has or which would reasonably be expected to have a Company Material Adverse Effect; (c) the number of Company Common Shares held by the Shareholders who have exercised their Dissent Rights shall not exceed 5% of the aggregate number of Company Common Shares outstanding on the date hereof; (d) Parent and Subco shall have received a release from the Company Financial Advisor and Bear Xxxxxxx & Co. Inc. releasing the Company from all obligations under the engagement letters entered into between such parties and confirming that all amounts due to it by the Company have been paid in full and otherwise in form and substance reasonably satisfactory to Parent and Subco; (e) the Company shall have obtained all consents, authorizations, approvals and waivers from third parties that are set forth on Section 2.06(a), Section 2.06(b) and Section 2.15 of the Disclosure Schedule; (f) no act, action, suit or proceeding shall have been threatened or taken before or by any Governmental Authority or Person, whether or not having the force of Law, and no Law shall have been proposed, enacted, promulgated or applied, in either case: (i) to cease trade, enjoin, prohibit or impose adverse limitations or conditions on the consummation of the Arrangement or on the right of Subco to own or exercise full rights of ownership of the Company Common Shares to be acquired by it under the Arrangement; or (ii) which, if the Arrangement was consummated, would impose limitations, restrictions or conditions on the business or operations of Parent, Subco, the Company or any of its Subsidiaries, or otherwise impose material fines or penalties on Parent, Subco, the Company or any of its Subsidiaries; (g) Parent and Subco shall have received reasonably satisfactory evidence that the Company and its Subsidiaries, taken as a whole, (i) shall have at least $20,000,000 of freely available cash and cash equivalents immediately prior to the Effective Time (after giving effect to the payment of all Company Transaction Expenses incurred or expected to be incurred in connection with the consummation of the Transactions) and (ii) shall have at least $12,500,000 of cash that is available to Parent and Subco to satisfy, in part, their obligations pursuant to this Agreement and the Plan of Arrangement; (h) the Company shall have delivered to Parent: (i) good standing certificates of the Company from its jurisdiction of incorporation and each jurisdiction where it is qualified to conduct business, dated within ten (10) days prior to the Effective Time; (ii) a certified copy of the resolutions of the Board of Directors of the Company approving the Transactions; (iii) a certified copy of the Company’s Organizational Documents; and (iv) such other documents relating to the transactions contemplated by this Agreement as Parent or Subco may reasonably request; (i) the Company shall have (i) prepared and mailed corrective filings pursuant to the Employee Plans Compliance Resolution System with respect to any delinquent amendments required to be made by law, including, without limitation, EGTRRA, to the Mobile Data Solutions, Inc. 401(k) Savings Plan and the Alliance Systems, Inc. Employee Stock Ownership and Investment Plan during the period between the date of termination of such plans and the date of final distribution of the assets of such plans and (ii) paid all expenses, fees and penalties associated therewith; and (j) at least thirty (30) of the employees set forth in Section 2.25(c) of the Disclosure Schedule shall have entered into a confidentiality and work product agreement with the Company and/or its Subsidiaries substantially in the form attached hereto as Exhibit C; provided, that any deviations from the form of the agreement attached hereto as Exhibit C shall be reasonably acceptable to Parent and Subco.
Appears in 2 contracts
Samples: Arrangement Agreement (Mdsi Mobile Data Solutions Inc /Can/), Arrangement Agreement (Mdsi Mobile Data Solutions Inc /Can/)
Conditions to the Obligations of Parent and Subco. The obligations of each of Parent and Subco to complete the Arrangement are subject to the satisfaction or, if permitted by applicable Law, waiver by Parent and Subco of the following further conditions:
(a) (i) the Company shall have performed in all material respects all of its covenants, agreements and obligations hereunder required to be performed by it at or prior to the Effective Time; (ii) each of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except that each representation and warranty qualified by materiality or by Company Material Adverse Effect shall be true and correct in all respects) as of the Closing Date Effective Time as if made at and as of such time, except to the extent that a representation or warranty is made as of a specific date, in which case, such representation or warranty shall be true and correct in all material respects (except that each representation and warranty qualified by materiality or by Company Material Adverse Effect shall be true and correct in all respects) as of such date; and (iii) Parent and Subco shall have received a certificate signed by an executive officer of the Company as to the satisfaction of the conditions set forth in this Section 6.02(a);
(b) since the date of this Agreement, no event shall have occurred which has or which would reasonably be expected likely to have a Company Material Adverse EffectEffect (it being understood that Parent and Subco shall have received a certificate signed by an executive officer of the Company as to the satisfaction of the conditions set forth in this Section 6.02(b);
(c) Parent and Subco shall have received reasonably satisfactory evidence that the consolidated total revenues of the Company and its Subsidiaries for the three (3) most recently completed full months immediately prior to the Effective Date, as compared to the consolidated total revenues of the Company and its Subsidiaries for the equivalent three-month period in the prior fiscal year, (i) if the Effective Date occurs on or prior to February 28, 2010, shall not be less than 85% of the consolidated total revenues of the Company and its Subsidiaries for the equivalent three-month period in the prior fiscal year, (ii) if the Effective Date occurs on March 1, 2010 or at any time on or prior to March 31, 2010, shall not be less than 87.5% of the consolidated total revenues of the Company and its Subsidiaries for the equivalent three-month period in the prior fiscal year and (iii) if the Effective Date occurs on or any time after April 1, 2010, shall not be less than 90% of the consolidated total revenues of the Company and its Subsidiaries for the equivalent three-month period in the prior fiscal year;
(d) the number of Company Common Shares held by the Shareholders who have exercised their Dissent Rights shall not exceed 55.0% of the aggregate number of Company Common Shares outstanding on the date hereof;
(de) Parent and Subco shall have received a release (i) in the form attached hereto as Exhibit C-1 from the Company Financial Advisor and Bear Xxxxxxx & Co. Inc. releasing the Company from all obligations under the any engagement letters letter entered into between such parties and confirming that all amounts due to it by the Company have been paid in full and otherwise (ii) in the form attached hereto as Exhibit C-2 from Arctic Acquisitions Inc. releasing the Company from all obligations under the letter agreement, dated August 3, 2009, entered into between such parties and substance reasonably satisfactory confirming that all amounts due to Parent and Subcoit by the Company have been paid in full;
(ef) the Company shall have obtained all consents, authorizations, approvals and waivers from third parties that are set forth on Section 2.06(a), Section 2.06(b) and Section 2.15 2.06 of the Disclosure ScheduleLetter;
(fg) no act, action, suit or proceeding shall have been threatened or taken before or by any Governmental Authority or Person, whether or not having the force of Law, and no Law shall have been proposed, enacted, promulgated or applied, in either case:
(i) to cease trade, enjoin, prohibit or impose adverse limitations or conditions on the consummation of the Arrangement or on the right of Subco to own or exercise full rights of ownership of the Company Common Shares to be acquired by it under the Arrangement; or
(ii) which, if the Arrangement was consummated, would impose limitations, restrictions or conditions on the business or operations of Parent, Subco, the Company or any of its Subsidiaries, or otherwise impose material fines or penalties on Parent, Subco, the Company or any of its Subsidiaries;
(gh) Parent and Subco shall have received reasonably satisfactory evidence that (i) the Company and its Subsidiaries, taken as a whole, (i) shall have at least $20,000,000 of freely available cash and cash equivalents (net of any outstanding checks to the extent the balance of any outstanding checks exceeds $425,000 at such time) immediately prior to the Effective Time (after giving effect to the payment of all Company Transaction Expenses incurred or expected to be incurred in connection with the consummation of the Transactions) equal to (A) in the case that the Effective Date occurs on or prior to February 28, 2010, in the amount of at least $5,400,000, (B) in the case that the Effective Date occurs on March 1, 2010 or at any time on or prior to April 30, 2010, in the amount of at least $5,600,000 and (C) in the case that the Effective Date occurs on or any time after May 1, 2010, in the amount of at least $6,000,000, and (ii) as of the Effective Date, the Company and its Subsidiaries shall not have at least $12,500,000 of cash any account or trade payables that is available to are past due;
(i) Parent and Subco shall have received "payoff" letters and releases for all Indebtedness (other than with respect to satisfyany such Indebtedness as designated in writing by Parent to the Company), in part, their obligations pursuant form and substance satisfactory to this Agreement the Parent and Subco;
(j) the Plan of ArrangementArrangement shall not have been amended or modified in a manner adverse to Parent or Subco without the prior written consent of Parent;
(hk) the Company shall have delivered to Parent: (i) good standing certificates of the Company from its jurisdiction of incorporation and each jurisdiction where it is qualified required to be registered to conduct business, dated within ten (10) days prior to the Effective Time; (ii) a certified copy of the resolutions of the Board of Directors of the Company approving the Transactions; (iii) a certified copy of the Company’s 's Organizational Documents; and (iv) such other documents relating to the transactions contemplated by this Agreement as Parent or Subco may reasonably request, including any deliverables requested by Parent's financing sources;
(il) the Company Parent and Subco shall have (i) prepared and mailed corrective filings pursuant to the Employee Plans Compliance Resolution System with respect to any delinquent amendments required to be made by law, including, without limitation, EGTRRA, to the Mobile Data Solutions, Inc. 401(k) Savings Plan and the Alliance Systems, Inc. Employee Stock Ownership and Investment Plan during the period between the date of termination of such plans and the date of final distribution of the assets of such plans and (ii) paid all expenses, fees and penalties associated therewith; and
(j) at least thirty (30) of the employees set forth in Section 2.25(c) of the Disclosure Schedule shall have entered into received a confidentiality and work product agreement with the Company and/or its Subsidiaries substantially certification in the form attached hereto as Exhibit C; provided, that any deviations D from the form Company and each Subsidiary of the Company that neither the Company nor any Subsidiary of the Company is or has been a United States Real Property Holding Corporation (as defined in Section 897(c)(2) of the Code) during the period described in Section 897(c)(1)(A)(ii) of the Code, thereby permitting the transfer of the Company Common Shares pursuant to this Agreement without withholding under Section 1445 of the Code; and
(m) each Management Shareholder shall have duly executed and delivered to Parent and Subco an agreement in favor of the Parent, Subco and the other parties named therein in the form attached hereto as Exhibit C shall be reasonably acceptable to Parent and Subco.E.
Appears in 1 contract
Samples: Arrangement Agreement (International Absorbents Inc)
Conditions to the Obligations of Parent and Subco. The obligations of each of Parent and Subco to complete consummate the Arrangement are subject to the satisfaction or, if permitted by applicable Law, (or waiver by Parent and Subco in its sole discretion) of the following further conditions:
(a) (i) the Company shall have performed in all material respects all of its covenants, agreements and obligations hereunder required to be performed by it at or prior to the Effective Time; (ii) each of the The representations and warranties of the Company contained set forth in this Agreement (without regard to materiality or Company Material Adverse Effect qualifiers contained therein), shall be true and correct in all material respects (except that each representation at and warranty qualified by materiality or by Company Material Adverse Effect shall be true in all respects) as of the date of this Agreement and the Closing Date as if made at and as of such time, date (except to the extent that a representation or warranty is made as of a specific such representations and warranties refer specifically to an earlier date, in which casecase such representations and warranties shall have been true and correct as of such earlier date), such representation or warranty shall except where the failure of the representations and warranties to be true and correct correct, individually or in all material respects (except that each representation the aggregate has not had and warranty qualified by materiality or by Company Material Adverse Effect shall be true in all respects) as of such date; and (iii) Parent and Subco shall have received a certificate signed by an executive officer of the Company as to the satisfaction of the conditions set forth in this Section 6.02(a);
(b) since the date of this Agreement, no event shall have occurred which has or which would not reasonably be expected to have a Company Material Adverse Effect;; provided, that the representations and warranties set forth in Sections 2.1, 2.2 and 2.5 shall be true and correct in all material respects at and as of the date of this Agreement and the Closing Date as if made as of such date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.
(b) The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date. Parent shall have received a certificate dated the Closing Date signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to the effect of the foregoing.
(c) the number of Company Common Shares held by the Shareholders who have exercised their Dissent Rights There shall not exceed 5% of the aggregate number of Company Common Shares outstanding on have occurred any event, occurrence or change after the date hereof;hereof that has had, or would reasonably be expected to have, a Company Material Adverse Effect.
(d) No Action shall be pending by a Governmental Entity (i) seeking to prevent consummation of the Arrangement, (ii) seeking to impose any limitation on the right of Parent and Subco shall have received a release from to control the Company Financial Advisor and Bear Xxxxxxx & Co. Inc. releasing its Subsidiaries or any other Affiliate of Parent, or (iii) seeking to restrain or prohibit the Company’s or Parent’s ownership or operation (or that of their respective Subsidiaries or Affiliates) of any portion of the business or assets of the Company from all obligations under the engagement letters entered into between such parties and confirming that all amounts due or Parent or any of their respective Subsidiaries or Affiliates, or to it by compel the Company have been paid in full and otherwise in form and substance reasonably satisfactory or Parent or any of their respective Subsidiaries or Affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and Subco;or any of their respective Subsidiaries or Affiliates.
(e) The Interim Order and the Company Final Order shall not have obtained all consentsbeen set aside or modified in a manner unacceptable to Parent, authorizationsacting reasonably, approvals and waivers from third parties that are set forth on Section 2.06(a), Section 2.06(b) and Section 2.15 of the Disclosure Schedule;appeal or otherwise.
(f) no actThe Final Order shall vary the 2006 Final Order by deleting paragraph 17 of the 2006 Final Order in its entirety, action, suit or proceeding shall have been threatened or taken before or by any Governmental Authority or Person, whether or not having effective at the force of LawEffective Time, and no Law shall have been proposedorder, enacted, promulgated or applied, in either case:
(i) to cease trade, enjoin, prohibit or impose adverse limitations or conditions on the consummation as part of the Arrangement or on Plan of Arrangement, the right deletion of Subco to own or exercise full rights of ownership section 2.03 of the Company Common Shares 2006 Plan of Arrangement in its entirety and the deletion of the reference to be acquired by it under section 2.03 in section 5.01 of the 2006 Plan of Arrangement; or
(ii) which, if the Arrangement was consummated, would impose limitations, restrictions or conditions on the business or operations of Parent, Subco, the Company or any of its Subsidiaries, or otherwise impose material fines or penalties on Parent, Subco, the Company or any of its Subsidiaries;.
(g) Parent All requisite consents, waivers, permits, exemptions, Orders and Subco shall have received reasonably satisfactory evidence approvals from a Governmental Entity that the Company and its Subsidiaries, taken as a whole, (i) shall have at least $20,000,000 of freely available cash and cash equivalents immediately prior are legally necessary to the Effective Time (after giving effect to the payment of all Company Transaction Expenses incurred or expected to be incurred in connection with the consummation of the Transactions) and (ii) shall have at least $12,500,000 of cash that is available to Parent and Subco to satisfy, in part, their obligations pursuant to this Agreement and implement the Plan of Arrangement;
(h) the Company Arrangement shall have been obtained or received on terms that are satisfactory to Parent, acting reasonably, and reasonable evidence shall have been delivered to Parent: (i) good standing certificates of the Company from its jurisdiction of incorporation and each jurisdiction where it is qualified to conduct business, dated within ten (10) days prior to the Effective Time; (ii) a certified copy of the resolutions of the Board of Directors of the Company approving the Transactions; (iii) a certified copy of the Company’s Organizational Documents; and (iv) such other documents relating to the transactions contemplated by this Agreement as Parent or Subco may reasonably request;
(i) the Company shall have (i) prepared and mailed corrective filings pursuant to the Employee Plans Compliance Resolution System with respect to any delinquent amendments required to be made by law, including, without limitation, EGTRRA, to the Mobile Data Solutions, Inc. 401(k) Savings Plan and the Alliance Systems, Inc. Employee Stock Ownership and Investment Plan during the period between the date of termination of such plans and the date of final distribution of the assets of such plans and (ii) paid all expenses, fees and penalties associated therewith; and
(j) at least thirty (30) of the employees set forth in Section 2.25(c) of the Disclosure Schedule shall have entered into a confidentiality and work product agreement with the Company and/or its Subsidiaries substantially in the form attached hereto as Exhibit C; provided, that any deviations from the form of the agreement attached hereto as Exhibit C shall be reasonably acceptable to Parent and Subco.
Appears in 1 contract
