CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that: (a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies; (b) the authorized share capital of the Company consists of 2,075,000 Ordinary A shares with a par value of ₤0.01 each and 245,000 Ordinary value of ₤0.01 ofeachwhich 1,830,000 Ordinary A shares and 245,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A; (c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them; (d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company; (e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation; (f) the only business carried on by the Company is the ownership and exploitation of a exclusive world-wide license to exploit the technology that enables users to send SMS messages via email utilising Microsoft Outlook, or any internet connection, to any mobile wireless device. Downloaded and ready to use in minutes, the product utilises key organisational features of Microsoft Outlook whilst having the flexibility to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number of SMS gateways. (g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis; (h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded; (i) except as disclosed in the Company Financial Statements: (i) no dividends or other distributions of any kind whatsoever on any shares in the capital of the Company, have been made, declared or authorized; (ii) the Company is not indebted to any of the Vendors; (iii) none of the Vendors or any other officer, director or employee of the Company is indebted or under obligation to the Company on any account whatsoever; and (iv) the Company has not guaranteed or agreed to guarantee any debt, liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever; (j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company; (k) since the Effective Date: (i) there has not been any material adverse change of any kind whatsoever in the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business; (ii) the Company has not waived or surrendered any right of any kind whatsoever of material value; (iii) except as permitted under this Agreement, the Company has not discharged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business; (iv) the business of the Company has been carried on in the ordinary course; (v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company; (l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim; (m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements; (n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year; (o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company; (p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed; (q) the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business; (r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions; (s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened; (t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement; (u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement; (v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever; (w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not: (i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or (ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind; (x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement; (y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their Business; (z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business; (aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement; (bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use; (cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company; (dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business; (ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property; (ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property. (gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B". (ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects; (jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement; (kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement; (ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
Appears in 2 contracts
Samples: Share Exchange Agreement (Mobilemail (Us) Inc.), Share Exchange Agreement (Mobilemail (Us) Inc.)
CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that:
(a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies;
(b) the authorized share capital of the Company consists of 2,075,000 Ordinary A 2,095,000 shares with a par value of ₤0.01 each and 245,000 Ordinary value of ₤0.01 ofeachwhich which 1,830,000 Ordinary A shares and 245,000 265,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A;
(c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them;
(d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company;
(e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation;
(f) the only business carried on by the Company is the ownership and exploitation of a an exclusive world-wide license to exploit the technology that enables users to send SMS messages via email utilising Microsoft Outlook, or any internet connection, to any mobile wireless device. Downloaded has created an online e- auction printing buy and ready to use in minutes, sell marketplace for the product utilises key organisational features provision of Microsoft Outlook whilst having the flexibility to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number of SMS gateways.commercial printing order placement;
(g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis;
(h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded;
(i) except as disclosed in the Company Financial Statements:
(i) no dividends or other distributions of any kind whatsoever on any shares in the capital of the Company, have been made, declared or authorized;
(ii) the Company is not indebted to any of the Vendors;
(iii) none of the Vendors or any other officer, director or employee of the Company is indebted or under obligation to the Company on any account whatsoever; and
(iv) the Company has not guaranteed or agreed to guarantee any debt, liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever;
(j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company;
(k) since the Effective Date:
(i) there has not been any material adverse change of any kind whatsoever in the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business;
(ii) the Company has not waived or surrendered any right of any kind whatsoever of material value;
(iii) except as permitted under this Agreement, the Company has not discharged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business;
(iv) the business of the Company has been carried on in the ordinary course;
(v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company;
(l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim;
(m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements;
(n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year;
(o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company;
(p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed;
(q) the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business;
(r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions;
(s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened;
(t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement;
(u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever;
(w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or
(ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind;
(x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement;
(y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their its Business;
(z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business;
(aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement;
(bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use;
(cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company;
(dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business;
(ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property;
(ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property.
(gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B".
(ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects;
(jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement;
(kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
Appears in 1 contract
CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that:
(a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies;
(b) the authorized share capital of the Company consists of 2,075,000 Ordinary A shares with a par value of ₤0.01 each and 245,000 Ordinary B shares with a par value of ₤0.01 ofeachwhich each of which 1,830,000 Ordinary A shares and 245,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A;
(c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them;
(d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company;
(e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation;
(f) the only business carried on by the Company is the ownership and exploitation of a exclusive world-wide license to exploit the technology that enables users to send SMS messages via email utilising Microsoft Outlookprovides, through a small hand-held device, a simple, fast, flexible and secure tool for the delivery by mobile professionals of high-quality color presentations using the presenters smart phone or any internet connection, to any mobile wireless device. Downloaded Personal Digital Assistant and ready to use in minutes, without the product utilises key organisational features of Microsoft Outlook whilst having the flexibility to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number of SMS gateways.
need for a laptop computer (g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis;
(h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded;
(i) except as disclosed in the Company Financial Statements:
(i) no dividends or other distributions of any kind whatsoever on any shares in the capital of the Company, have been made, declared or authorized;
(ii) the Company is not indebted to any of the Vendors;
(iii) none of the Vendors or any other officer, director or employee of the Company is indebted or under obligation to the Company on any account whatsoever; and
(iv) the Company has not guaranteed or agreed to guarantee any debt, liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever;
(j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company;
(k) since the Effective Date:
(i) there has not been any material adverse change of any kind whatsoever in the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business;
(ii) the Company has not waived or surrendered any right of any kind whatsoever of material value;
(iii) except as permitted under this Agreement, the Company has not discharged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business;
(iv) the business of the Company has been carried on in the ordinary course;
(v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company;
(l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim;
(m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements;
(n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year;
(o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company;
(p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed;
(q) the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business;
(r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions;
(s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened;
(t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement;
(u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever;
(w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or
(ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind;
(x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement;
(y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their Business;
(z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business;
(aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement;
(bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use;
(cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company;
(dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business;
(ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property;
(ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property.
. (gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B".
(ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects;
(jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement;
(kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
Appears in 1 contract
CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that:
(a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies;
(b) the authorized share capital of the Company consists of 2,075,000 2,087,000 Ordinary A shares with a par value of ₤0.01 each and 245,000 Ordinary B shares with a par value of ₤0.01 ofeachwhich each of which 1,830,000 Ordinary A shares and 245,000 257,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A;
(c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them;
(d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company;
(e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation;
(f) the only business carried on by the Company is the ownership and exploitation of a exclusive world-wide license for the provision of mobile phone content in the form of gaming and entertainment technology to exploit mobile phone users through the technology that enables users to send SMS messages via email utilising Microsoft Outlook, or any internet connection, to any mobile wireless device. Downloaded creation and ready to use in minutes, the product utilises key organisational features of Microsoft Outlook whilst having the flexibility to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number delivery of SMS gatewaysbased games in order to facilitate driving traffic and increasing airtime for wireless network.
(g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis;
(h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded;
(i) except as disclosed in the Company Financial Statements:
(i) no dividends or other distributions of any kind whatsoever on any shares in sharesin the capital of the Company, have been made, declared or authorized;
(ii) the Company is not indebted to any of the Vendors;
(iii) none of the Vendors or any other officer, director or employee of the Company theCompany is indebted or under obligation to the Company on any account whatsoever; and
(iv) the Company has not guaranteed or agreed to guarantee any debt, ,liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever;
(j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company;
(k) since the Effective Date:
(i) there has not been any material adverse change of any kind whatsoever in whatsoeverin the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business;
(ii) the Company has not waived or surrendered any right of any kind whatsoever kindwhatsoever of material value;
(iii) except as permitted under this Agreement, the Company has not dischargednotdischarged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business;
(iv) the business of the Company has been carried on in the ordinary course;
(v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company;
(l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim;
(m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements;
(n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year;
(o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company;
(p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed;
(q) the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business;
(r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions;
(s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened;
(t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement;
(u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever;
(w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or
(ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind;
(x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement;
(y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their Business;
(z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business;
(aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement;
(bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use;
(cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company;
(dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business;
(ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property;
(ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property.
(gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B".
(ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects;
(jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement;
(kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
Appears in 1 contract
CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that:
(a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies;
(b) the authorized share capital of the Company consists of 2,075,000 2,085,000 Ordinary A shares with a par value of ₤0.01 each and 245,000 255,000 Ordinary B shares with a par value of ₤0.01 ofeachwhich each of which 1,830,000 Ordinary A shares and 245,000 255,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A;
(c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them;
(d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company;
(e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation;
(f) the only business carried on by the Company is the ownership and exploitation of a exclusive world-wide license software that provides an integrated music interface and music collection manager for use by both the end-user music listener and to exploit the technology that enables users record industry companies to send SMS messages via email utilising Microsoft Outlook, or any internet connection, enable such companies to any mobile wireless device. Downloaded and ready embed this software into their websites in order to use in minutes, the product utilises key organisational features of Microsoft Outlook whilst having the flexibility provide seamless access to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number of SMS gateways.on-line music for sale
(g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis;
(h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded;
(i) except as disclosed in the Company Financial Statements:
(i) no dividends or other distributions of any kind whatsoever on any shares in the capital of the Company, have been made, declared or authorized;
(ii) the Company is not indebted to any of the Vendors;
(iii) none of the Vendors or any other officer, director or employee of the Company is indebted or under obligation to the Company on any account whatsoever; and
(iv) the Company has not guaranteed or agreed to guarantee any debt, liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever;
(j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company;
(k) since the Effective Date:
(i) there has not been any material adverse change of any kind whatsoever in the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business;
(ii) the Company has not waived or surrendered any right of any kind whatsoever of material value;
(iii) except as permitted under this Agreement, the Company has not discharged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business;
(iv) the business of the Company has been carried on in the ordinary course;
(v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company;
(l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim;
(m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements;
(n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year;
(o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company;
(p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed;
(q) the the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business;
(r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions;
(s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened;
(t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement;
(u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever;
(w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or
(ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind;
(x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement;
(y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their Business;
(z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business;
(aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement;
(bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use;
(cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company;
(dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business;
(ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property;
(ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property.
(gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B".
(ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects;
; (jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement;
(kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
Appears in 1 contract
CONCERNING THE COMPANY. In order to induce the Purchaser to enter into this Agreement and complete its obligations hereunder, the Company represents and warrants to The Purchaser that:
(a) It is duly incorporated under the laws of England and Wales and is in good standing with respect to the filing of annual returns with the Registrar of Companies;
(b) the authorized share capital of the Company consists of 2,075,000 Ordinary A shares with a par value of ₤0.01 each and 245,000 Ordinary value each, of ₤0.01 ofeachwhich which 1,830,000 Ordinary A shares and 245,000 Ordinary B shares are issued and outstanding as fully paid and non-assessable shares, registered in the names of the persons set out in Schedule A;
(c) except for the Company Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a "security" of the Company and, except as is provided for in this Agreement, there are no options, agreements, rights of first refusal or other rights of any kind whatsoever to acquire all or any part of the Company Shares or any interest in them from the Vendors or from any one of them;
(d) the constituting documents of the Company have not been altered since the incorporation of the Company or, if they have been, all such alterations are contained and reflected in the minute book of the Company;
(e) all of the material transactions of the Company have been promptly and properly recorded or filed in or with the books or records of the Company and the minute books of the Company contain all records of the meetings and proceedings of shareholders and directors of the Company since its incorporation;
(f) the only business carried on by the Company is the ownership and exploitation of a an exclusive world-wide license to exploit the technology that enables users provides for “Wireless Guest Entertainment” that allows hoteliers to send SMS messages via email utilising Microsoft Outlook, or any internet connection, increase revenue and guest satisfaction by providing bespoke wireless entertainment and services packages to any mobile wireless device. Downloaded and ready to use in minutes, the product utilises key organisational features of Microsoft Outlook whilst having the flexibility to be incorporated into client Customer Relationship Management (CRM) applications, websites and any number of SMS gateways.luxury hotels..
(g) the Company Financial Statements are true and correct in every material respect and present fairly and accurately the financial position and results of the operations of the Company for the periods then ended and the Company Financial Statements have been prepared in accordance with all applicable generally accepted accounting principles applied on a consistent basis;
(h) the books and records of the Company disclose all material financial transactions of the Company since the Effective Date, and such transactions have been fairly and accurately recorded;
(i) except as disclosed in the Company Financial Statements:
(i) no dividends or other distributions of any kind whatsoever on any shares in the capital of the Company, have been made, declared or authorized;
(ii) the Company is not indebted to any of the Vendors;
(iii) none of the Vendors or any other officer, director or employee of the Company is indebted or under obligation to the Company on any account whatsoever; and
(iv) the Company has not guaranteed or agreed to guarantee any debt, liability or other obligation of any kind whatsoever of any person, firm or corporation of any kind whatsoever;
(j) there are no material liabilities of the Company whether direct, indirect, absolute, contingent or otherwise, which are not disclosed or reflected in the Company Financial Statements except those incurred in the ordinary course of business of the Company since the Effective Date and such liabilities are recorded in the books and records of the Company;
(k) since the Effective Date:
(i) there has not been any material adverse change of any kind whatsoever in the financial position or condition of the Company or any damage, loss or other change of any kind whatsoever in circumstances materially affecting the business or the assets of the Company or the right or capacity of the Company to carry on its business;
(ii) the Company has not waived or surrendered any right of any kind whatsoever of material value;
(iii) except as permitted under this Agreement, the Company has not discharged, satisfied or paid any lien, charge or encumbrance of any kind whatsoever or obligation or liability of any kind whatsoever other than current liabilities in the ordinary course of its business;
(iv) the business of the Company has been carried on in the ordinary course;
(v) no capital expenditures exceeding in the aggregate ₤10,000 have been authorized or made by the Company;
(l) the accounts receivable of the Company shown on the Company Financial Statements are bona fide, good and collectible without set-off or counterclaim;
(m) all tax returns and reports of the Company required by law to have been filed have been filed and are substantially true, complete and correct and all taxes and other government charges of any kind whatsoever of the Company have been paid or accrued in the Company Financial Statements;
(n) the Company has been assessed for income tax for all of its full or partial fiscal years to and including its most recently completed fiscal year;
(o) adequate provision has been made for taxes payable by the Company for the current period for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements of any kind whatsoever providing for an extension of time with respect to the filing of any tax return by, or payment of, any tax or governmental charge of any kind whatsoever by the Company;
(p) they are not aware of any contingent tax liabilities of the Company of any kind whatsoever or any grounds which would prompt a reassessment of the Company including aggressive treatment of income and expenses in earlier tax returns filed;
(q) the Company has made all collections, deductions, remittances and payments of any kind whatsoever and filed all reports and returns required by it to be made or filed under the provisions of all applicable statutes requiring the making of collections, deductions, remittances or payments of any kind whatsoever in those jurisdictions in which the Company carries on business;
(r) the Company has good and sufficient right and authority to enter into this Agreement and to carry out its obligations under this Agreement on the terms and conditions set forth herein, and this Agreement is a binding agreement on the Company enforceable against it in accordance with its terms and conditions;
(s) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting the Company at law or in equity or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau or agency of any kind whatsoever nor are there, to the best of their knowledge, any pending or threatened;
(t) the directors, officers and key employees of the Company and all of their compensation arrangements whether as directors, officers or employees of, or as independent contractors or consultants to the Company are as listed on Schedule "C" to this Agreement;
(u) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(v) to the best of their knowledge, the Company is not in breach of any law, ordinance, statute, regulation, by-law, order or decree of any kind whatsoever;
(w) the execution and delivery of this Agreement and the performance of the parties obligations under this Agreement will not:
(i) conflict with, or result in the breach of or the acceleration of any indebtedness under, or constitute default under, the constating documents of the Company, or any indenture, mortgage, agreement, lease, licence or other instrument of any kind whatsoever to which the Company is a party or by which any one of them is bound, or any judgment or order of any kind whatsoever of any court or administrative body of any kind whatsoever by which any one of them is bound; or
(ii) to the best of their knowledge, result in the violation of any law, ordinance, statute, regulation, by-law, order or decree of any kind;
(x) the Company holds all licences and permits that are required for carrying on its Business in the manner in which such Business has been carried on and in the manner in which such Business will need to be carried on in order for the Company to meet its obligations under this Agreement;
(y) the Company is the registered and beneficial owners of all of the properties and assets (collectively the "Assets") listed in Schedule "C" to this Agreement, and such Assets represent all of the property and assets used by the Company and which are necessary or useful in the conduct of their its Business;
(z) the Company has the power to own the Assets owned by it and has the power to carry on the Business carried on by it and to meet its obligations under this Agreement, and the Company is duly qualified to carry on business in all jurisdictions in which it carries on business;
(aa) the Company has good and marketable title to the Assets free and clear of all liens, charges and encumbrances of any kind whatsoever save and except for those specified as "Permitted Encumbrances" on Schedule "B" to this Agreement;
(bb) all machinery and equipment of any kind whatsoever comprised in the Assets is in reasonable operating condition and in a state of reasonable maintenance and repair taking into account its age and use;
(cc) the trademarks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand names, industrial designs and all other industrial or intellectual property owned or used by the Company in carrying on the Business and all applications therefor and all goodwill connected therewith, including, without limitation, all licences, registered user agreements and all like rights used by or granted to the Company in connection with the Business and all right to register or otherwise apply for the protection of any of the foregoing (collectively the "Intellectual Property") included on Schedule "B" to this Agreement constitute all of the Intellectual Property of the Company;
(dd) the Intellectual Property comprises all trade marks, trade names, business names, patents, inventions, know-how, copyrights, software, source code, object code, service marks, brand marks, industrial designs and all other industrial or intellectual property necessary to conduct the Business;
(ee) except as disclosed on Schedule "B", the Company is the beneficial owner of the Intellectual Property free and clear of all liens, charges or encumbrances of any kind whatsoever save and except for the Permitted Encumbrances, and the Company is not party to or bound by any agreement or other obligation of any kind whatsoever that limits or impairs its ability to sell, transfer, assign or convey, or that otherwise affects, the Intellectual Property;
(ff) except as disclosed on Schedule "B", no person has been granted any interest in or right to use all or any portion of the Intellectual Property and they are not aware of a claim of any infringement or breach of any industrial or intellectual property rights of any other person by the Company, nor has the Company received any notice that the conduct of the Business, including the use of the Intellectual Property, infringes upon or breach any industrial or intellectual property rights of any other person, and they, after due inquiry, do not have any knowledge of any infringement or violation of any of the rights of the Company in the Intellectual Property.
(gg) the conduct of the Business does not infringe upon the patents, trade marks, licences, trade names, business names, copyright or other industrial or intellectual property rights, domestic or foreign, of any other person and they are not aware of any state of facts that casts doubt on the validity or enforceability of any of the Intellectual Property. (hh) all of the Material Contracts that comprise or relate to the Intellectual Property are listed on Schedule "B".
(ii) the Company maintains insurance against loss of, or damage to, the Assets by all insurable risks on a replacement cost basis and reasonable insurance with respect to public liability for a business of its size (collectively the "Insurance Coverage"), and all of the policies (the "Insurance Policies") in respect of such Insurance Coverage are listed on Schedule "A" to this Agreement and all such Insurance Policies are in good standing in all respects and not in default in any respects;
(jj) no payments of any kind whatsoever have been made or authorized by the Company since the Effective Date to or on behalf of the Shareholders of or entity holding an interest in the Company or any one of them or to or on behalf of any of the directors, officers or key employees of the Company except in accordance with those compensation arrangements specified on Schedule "C" to this Agreement or except as contemplated by this Agreement;
(kk) there are no pensions, profit sharing, group insurance or similar plans or other deferred compensation plans of any kind whatsoever affecting the Company other than those specified on Schedule "C" to this Agreement;
(ll) the Company is not now, and have never been, a party to any collective agreement with any labour union or other association of employees of any kind whatsoever; (mm) the contracts and agreements included on Schedules "B" and "C" to this Agreement (collectively the "Material Contracts") constitute all of the material contracts and agreements of the Company;
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