IDTI » Topics » IDT and Acquisition Sub Conditions Precedent

This excerpt taken from the IDTI 8-K filed May 20, 2009.

IDT and Acquisition Sub Conditions Precedent

The Arrangement Agreement provides that the obligations of IDT and Acquisition Sub to complete the Arrangement are subject to the fulfilment of each of the following conditions precedent (each of which is for the exclusive benefit of IDT and Acquisition Sub and may be waived by IDT and Acquisition Sub):

 

   

Tundra shall have performed or complied with all agreements and covenants required by the Arrangement Agreement in all material respects or all respects, as applicable, and IDT and Acquisition Sub shall have received a certificate of Tundra addressed to IDT and Acquisition Sub and dated the Effective Date, signed on behalf of Tundra by two senior executive officers of Tundra, confirming the same as of the Effective Date;

 

   

the representations and warranties of Tundra set forth in the Arrangement Agreement shall be true and correct either: (i) in all respects, without regard to any materiality or Material Adverse Effect qualifications contained in them as of the date of the Arrangement Agreement and as of the Effective Time as though made on and as of the Effective Time (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date), except where the failure of such representations to be so true and correct in all respects would not reasonably be expected to have a Material Adverse Effect; (ii) in all respects as of the Effective Time, as though made on and as of the Effective Time (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date); or (iii) in all material respects as of the Effective Time, as though made on and as of the Effective Time, and IDT and Acquisition Sub shall have received certificates of Tundra addressed to IDT and Acquisition Sub and dated the Effective Date, signed on behalf of Tundra by two senior executive officers of Tundra, confirming the same;

 

   

since the date of the Arrangement Agreement, no Material Adverse Effect has occurred in respect of Tundra;

 

   

the aggregate number of Tundra Shares held, directly or indirectly, by those holders of such shares who have validly exercised Dissent Rights and not withdrawn such exercise in connection with the Arrangement (or instituted proceedings to exercise Dissent Rights) shall not exceed 5% of the aggregate number of Tundra Shares outstanding immediately prior to the Effective Time;

 

   

the Plan of Arrangement shall not have been amended, modified or supplemented by Tundra without Acquisition Sub’s written consent or by approval or direction of the Court without the written consent of Acquisition Sub, acting reasonably;

 

   

the number of issued and outstanding Tundra Shares, as of the Effective Time shall not exceed 19,326,053 excluding any Tundra Shares issued following the date of the Arrangement Agreement pursuant to the exercise of any Tundra Options issued and outstanding on the date of the Arrangement Agreement and no Tundra Options other than those disclosed to IDT and Acquisition Sub in writing on April 30, 2009, shall have been issued and outstanding (whether vested or unvested) and there shall be no other options, warrants, conversion privileges, equity-based awards or other rights, agreements or commitments of any character whatsoever requiring or which may require the issuance, sale or transfer by Tundra of any shares or other securities of Tundra or any of its subsidiaries or any securities convertible into, or exchangeable or exercisable for, or otherwise evidencing a right to acquire, or whose value is based on or in reference to the value or price of, any shares or other securities of Tundra or any of its subsidiaries; and

 

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the Board of Directors shall have taken all necessary action required by, and in accordance with, the Tundra Stock Option Plans and the Tundra Restricted Share Unit Plan in order to give effect to the requirements of the Arrangement Agreement relating to the Tundra Options and Tundra RSUs.

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