This Waiver Agreement involves
Title: WAIVER AND FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 8/31/2016
Industry: Computer Services Sector: Technology
WAIVER AND FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This WAIVER AND FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made and entered into as of August 25, 2016 (this “ Waiver and Amendment ”) by and among HELIOS AND MATHESON ANALYTICS INC., a Delaware corporation (“ Helios ”); ZONE ACQUISITION, INC., a Nevada corporation (“ Sub ”), and ZONE TECHNOLOGIES, INC., a Nevada corporation (the “ Company ”, together with Helios and Sub, the “ Parties ” and each, a “ Party ”). Capitalized terms used herein but not herein defined shall have the respective meanings ascribed thereto in that certain Agreement and Plan of Merger, dated as of July 7, 2016, by and among Helios, Sub and the Company (the “ Merger Agreement ”). Unless explicitly stated otherwise, references to “Sections” or a “Section” refer to Sections or a Section of the Merger Agreement, and references to any “Schedule” refer to a Schedule to the Merger Agreement.
WHEREAS , the Parties have agreed to waive the condition under Section 5.1(h) for Helios to file the Registration Statement and for the Registration Statement to be declared effective by the SEC under the Securities Act as a condition precedent to their obligations to consummate the Merger.
WHEREAS , in accordance with Section 7.9 , the Parties desire to amend the Merger Agreement as set forth in this Waiver and Amendment.
NOW, THEREFORE , in consideration of the mutual covenants of the Parties as hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1.1 Waiver . The Parties hereby agree to waive the following provision as a condition precedent to their obligations to consummate the Merger:
A. “5.1 Conditions to Obligations of Each Party.
B. (h) Effectiveness of the Registration Statement. The Registration Statement shall have been declared effective by the SEC under the Securities Act. No stop order suspending the effectiveness of the Registration Statement shall have been issued by the SEC and no Legal Proceedings for that purpose shall have been initiated or threatened by the SEC.”
1.2 No Further Obligations Regarding the Registration Statement . Upon the execution of this Waiver and Amendment, none of the Parties shall have further obligations to take any actions required under the Merger Agreement to prepare or file the Registration Statement or to cause it to become effective.
2.1 Amendment to Section 7.1 (Definitions) . The definition of “Due Diligence Review Period” under Section 7.1 is hereby amended and restated to read in its entirety as follows:
C. “‘ Due Diligence Review Period ’ means the period from the date of this Agreement until 12:00 PM Pacific time on September 16, 2016 during which the Company and Helios shall complete their respective due diligence review of the other.”
2.2 Amendment to Section 5.1 (Conditions to Obligations of Each Party) . Subsection (m) (Opinion of Financial Advisor) under Section 5.1 is hereby amended and restated to read in its entirety as follows:
D. “No later than August 23, 2016 , the Helios Board shall have received the opinion of a financial advisor to the effect that, as of the date of such opinion, and based upon and subjec