Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid). (b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date. (c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid. (d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries. (e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party. (f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid. (g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity (h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements). (i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000. (j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure. (k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117. (l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law). (m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 3 contracts
Samples: Merger Agreement (Spirit AeroSystems Holdings, Inc.), Merger Agreement (Boeing Co), Merger Agreement (Boeing Co)
Government Contracts. (a) Since Except as set forth in Section II.17 of the Applicable DateContribution Disclosure Schedule, and except for inaccuracies in the Company following as have not had, and its Subsidiaries have may not reasonably be expected to have, a Material Adverse Effect on the Businesses, with respect to each fixed price Government Contract with a backlog value in excess of $10,000,000, each "cost plus" Government Contract with a backlog value in exceeds of $10,000,000 and each Bid which, if accepted, would result in such a Government Contract (a "Government Bid") to which LM or any Transferor Subsidiary is a party with respect to the Businesses, (i) LM or any such Transferor Subsidiary has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein; (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and ii) LM or any Transferor Subsidiary has complied with all requirements of all material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Applicable Laws or agreements pertaining to such Government Contract or Material Company Government Bid).
; (biii) Since the Applicable Dateall representations and certifications executed, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect acknowledged or set forth in or pertaining to any such Government Contract or Company Government Bid were current, accurate complete and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, correct as of their effective date.
, and LM or any Transferor Subsidiary has complied in all material respects with all such representations and certifications; (civ) Since neither the Applicable Date through the date of this Agreement, no Governmental Entity U.S. Government nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company LM or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, Transferor Subsidiary that the Company LM or any of its Subsidiaries has, or is alleged to have, such Transferor Subsidiary has breached or violated in any material respect any Applicable Law, representation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
Government Bid where there is a substantial likelihood that the matter notified to LM or any such Transferor Subsidiary will be resolved in a manner adverse to LM or any such Transferor Subsidiary, (dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice is currently in effect pertaining to such Government Contract or Government Bid; (excluding for this purpose ineligibility vi) to bid on certain Contracts the best of the knowledge of LM, no cost incurred by LM or any Transferor Subsidiary pertaining to such Government Contract or Government Bid has been questioned or challenged, is the subject of any investigation or has been disallowed by the U.S. Government where, with respect to any question, challenge or investigation, there is a substantial likelihood of a determination adverse to LM or any such Transferor Subsidiary; and (vii) to the best of the knowledge of LM, no money due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state LM or federal Laws of the United States, the functional equivalents thereof, if any) any Transferor Subsidiary pertaining to any Material Company such Government Contract, and, since the Applicable Date, no Governmental Entity has, Contract or Government Bid has been (or has attempted to the Knowledge of the Company, threatened to issue be) withheld or set off where there is a substantial likelihood that LM or any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, Transferor Subsidiary will not ultimately be deemed to the Knowledge of the Company, oral notice from any Governmental Entity pertaining be entitled to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiariessuch money.
(eb) Since the Applicable Date, no material written or, to the Knowledge Except as set forth in Section II.17 of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, Contribution Disclosure Schedule: (i) neither to the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer best of the Company or its Subsidiaries has been debarred or suspendedknowledge of LM, or to the Knowledge none of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company LM's or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the Transferor Subsidiary's respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last year has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitAuthority, or any audit or, to the Knowledge of the Company, or investigation of the Company by LM or any of its Subsidiaries Transferor Subsidiary with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Contract or Government Bid; and (ii) during the last year, LM or any Transferor Subsidiary has not conducted or initiated any internal investigation or, to the Knowledge best of the Companyknowledge of LM, there is no current had reason to conduct, initiate or outstanding civil investigative demand report any internal investigation, or subpoena issued made a voluntary disclosure to the Company U.S. Government, with respect to any alleged irregularity, misstatement or any of its Subsidiaries, omission arising under or relating to a Governmental Contract or Government Bid. Neither LM nor any Transferor Subsidiary has any knowledge or reason to know of its any irregularity, misstatement or their respective directors, officers omission arising under or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither or Government Bid that has led or could reasonably be expected to lead, either before or after the Company nor Closing Date, to any of its Subsidiaries has made the consequences set forth in clauses (i) or (ii) of the immediately preceding sentence or any written disclosure under the FAR mandatory disclosure other material damage, penalty assessment, recoupment of payment or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosuredisallowance of cost.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as set forth in Section II.17 of the Contribution Disclosure Schedule, or as has not had, and may not reasonably be expected to have, a Material Adverse Effect with respect to the Businesses, there exist (i) no outstanding claims against LM or any Transferor Subsidiary, either by the U.S. Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract or Government Bid referred to in Section II.17(a) where there is a substantial likelihood of a determination adverse to LM or any such Transferor Subsidiary and (ii) no disputes between LM or any Transferor Subsidiary and the U.S. Government under the Contract Disputes Act or any other Federal statute or between LM or any Transferor Subsidiary and any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract or Government Bid where there is a substantial likelihood of a determination adverse to LM or any Transferor Subsidiary. LM has no knowledge or reason to know of any fact which could reasonably be expected to result in a claim or a dispute under clause (i) or (ii) of the immediately preceding sentence.
(d) Except as set forth in Section II.17 of the Contribution Disclosure Schedule, neither LM nor any Transferor Subsidiary (with respect to the Businesses), nor to the best of the knowledge of LM, any employees, consultants or agents of any of the Businesses, is (or during the last five years has been) suspended or debarred from doing business with the U.S. Government or is (or during such period was) the subject of a finding of a nonresponsibility or ineligibility for U.S. Government contracting. LM does not know or have any reason to know of any facts or circumstances that would warrant the suspension or debarment, or the finding of nonresponsibility or ineligibility, on the part of LM or any Transferor Subsidiary or any employees, consultants or agents of any of the Businesses.
(e) Except as set forth in Section II.17 of the Contribution Disclosure Schedule, and except for any of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Businesses, all material test and inspection results LM or any Transferor Subsidiary has provided to the U.S. Government pursuant to any Government Contract referred to in Section II.17(a) or to any other Person pursuant to any such security clearances are valid Government Contract or as a part of the delivery to the U.S. Government pursuant to any such Government Contract of any article designed, engineered or manufactured in the Businesses were complete and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied correct in all material respects with as of the date so provided. Except as set forth in Section II.17 of the Contribution Disclosure Schedule, and except for any of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Businesses, LM or any Transferor Subsidiary has provided all security obligations incorporated in material test and inspection results to the U.S. Government pursuant to any Material Company such Government Contract as required by Applicable Law and all national security obligations the terms of the applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Government Contracts.
(lf) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding Except for any material work of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Businesses, no statement, representation or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted warranty made by the Company LM or any of its Subsidiaries Transferor Subsidiary in any Government Contract, any exhibit thereto or in any certificate, statement, list, schedule or other document submitted or furnished to the U.S. Government in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, Bid (i) contained on the Company and its Subsidiaries comply with DFARS 252.204-7012date so furnished or submitted any untrue statement of a material fact, Safeguarding Covered Defense Information and Cyber Incident Reporting or failed to state a material fact necessary to make the statements contained therein, in all light of the circumstances in which they were made, not misleading or (ii) contains on the date hereof any untrue statement of a material respects fact, or fails to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading, except in the case of both clauses (i) and (ii) since the Applicable Date, the Company and its Subsidiaries have any untrue statement or failure to state a material fact that would not submitted result in any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, material liability to the Knowledge Businesses as a result of the Company, no circumstances have existed since the Applicable Date that would have warranted such untrue statement or failure to state a reportmaterial fact.
Appears in 3 contracts
Samples: Contribution and Assumption Agreement (General Electric Co), Contribution and Assumption Agreement (General Electric Co), Contribution and Assumption Agreement (Lockheed Martin Corp)
Government Contracts. Except (ai) Since as described in the Applicable DateRegistration Statement, the Time of Sale Prospectus and the Prospectus or (ii) as would not reasonably be expected to have a Material Adverse Effect, with respect to each Government Contract (as defined below): (A) during the five years prior to the date hereof, (1) the Company and each of its Subsidiaries have subsidiaries has complied in with all material respects with laws, regulations and requirements applicable to Government Contracts or Government Proposals (as defined below) and the terms and conditions of (including all representations and certifications relating to) each Material Company Government Contract and Material Company Bid as requiredGovernment Proposal, including all clauses, provisions and requirements incorporated expressly by reference or by operation compliance with accounting requirements; (2) neither the Company nor any of Law therein its subsidiaries nor any of their respective Principals (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”defined in 48 C.F.R. § 2.101), Department or, to the knowledge of Defense FAR Supplement the Company, current employees is or has been suspended or debarred, or proposed for debarment or suspension from government contracting declared ineligible or determined non-responsible; (“DFARS”3) and agency FAR supplement clauses in any Material Company Government Contract no governmental body or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiariessubsidiaries, as applicable, in writing or, to the Knowledge of the Company, orally, any breach or violation of any applicable law that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining remains unresolved and pertains to any Government Contract or Company Bid.
Contract; (d4) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written ornotice of termination for default, to the Knowledge of the Company, oral cure notice from any Governmental Entity pertaining to any Material Company Government Contract indicating or show cause notice that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, remains unresolved and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating pertains to any Government Contract or Company Bid.
Contract; (g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i5) neither the Company nor any of its Subsidiaries subsidiaries has been the subject received any written or oral notice of any audits or investigations that pertains to a written finding of non-responsibility or ineligibility for government contracting and Government Contract; (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i6) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers subsidiaries has conducted an internal investigation or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitcompliance review, or made any audit or, voluntary or mandatory disclosure to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries governmental body with respect to any alleged material irregularity, misstatement misstatement, significant overpayment or omission violation of law arising under or relating to any Government Contract, ; (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii7) neither the Company nor any of its Subsidiaries subsidiaries has made been subject to a civil fraud law suit or received a subpoena or civil investigative demand issued by any governmental body regarding any Government Contract; and (8) neither the Company nor any of its subsidiaries is subject to claims or disputes in excess of $250,000 as a result of a written disclosure under the FAR mandatory disclosure finding or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any determination by a Governmental EntityAuthority, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary Governmental Authority has withheld or set off or attempted to perform all Material Company Government Contractswithhold or set off, and all such security clearances are valid and an amount in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable excess of $250,000 otherwise due or payable to the Company or any subsidiary under any Government Contract; and (B) neither the Company nor any of its Subsidiaries relating to the safeguarding of and access to classified information, including those specified subsidiaries holds a facility security clearance as defined in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
Manual (l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5DoD 5220.22-M) or Material Company any similar security clearance issued by any non-U.S. Governmental Authority. As used herein, “Government Contract terms Contract” means any prime contract, subcontract, purchase order, task order, delivery order, teaming agreement, joint venture agreement, strategic alliance agreement, basic ordering agreement, pricing agreement, letter contract, grant, subgrant or provisionsother similar written arrangement of any kind, except pursuant to existing organizational conflicts of interest mitigation plans submitted by between the Company or any of its Subsidiaries subsidiaries, on the one hand, and any governmental body or any prime contractor or subcontractor (at any tier) of any governmental body, on the other hand. As used herein, “Government Proposal” means a bid, quote, tender, offer or proposal which, if accepted, would result in connection with any Material Company a Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Contract.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 3 contracts
Samples: Underwriting Agreement (Certara, Inc.), Underwriting Agreement (Certara, Inc.), Underwriting Agreement (Certara, Inc.)
Government Contracts. (a) Since Except as set forth in Section B.15 of the Applicable DateDisclosure Schedules or known to the Individual Purchasers, and except for inaccuracies in the Company following as have not had, and its Subsidiaries may not reasonably be expected to have a Material Adverse Effect on the Business, with respect to each fixed price Government Contract with a backlog value in excess of $5,000,000, each "cost plus" Government Contract with a backlog value in excess of $7,500,000 and each Bid that, if accepted, would result in such a Government Contract (a "Government Bid") to which Lockheed Xxxxxx or any Affiliated Transferor is a party with respect to the Business, (i) to the knowledge of Lockheed Xxxxxx, Lockheed Xxxxxx (or the applicable Affiliated Transferor) has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein; (includingii) to the knowledge of Lockheed Xxxxxx, but not limited to, and as may be applicable, Lockheed Xxxxxx (or the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department Affiliated Transferor) has complied with all requirements of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company all Applicable Laws or agreements pertaining to such Government Contract or Material Company Government Bid); (iii) to the knowledge of Lockheed Xxxxxx, all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract or Government Bid were complete and correct as of their effective date, and Lockheed Xxxxxx (or the applicable Affiliated Transferor) has complied in all respects with all such representations and certifications; (iv) neither the U.S. Government nor any prime contractor, subcontractor or other Person has notified Lockheed Xxxxxx (or the applicable Affiliated Transferor) that Lockheed Xxxxxx (or the applicable Affiliated Transferor) has breached or violated any Applicable Law, certification, representation, clause provision or requirement pertaining to such Government Contract or Government Bid; (v) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to such Government Contract or Government Bid; (vi) to the knowledge of Lockheed Xxxxxx, no cost incurred by Lockheed Xxxxxx (or the applicable Affiliated Transferor) pertaining to such Government Contract or Government Bid has been questioned or challenged, is the subject of any investigation or has been (or could reasonably be expected to be) disallowed by the U.S. Government; (vii) to the knowledge of Lockheed Xxxxxx, no money due to Lockheed Xxxxxx (or the applicable Affiliated Transferor) pertaining to such Government Contract or Government Bid has been (or has attempted to be) withheld or set off and Lockheed Xxxxxx (or the applicable Affiliated Transferor) is entitled to all progress payments with respect thereto and (viii) each Government Contract is valid and subsisting.
(b) Since Except as set forth in Section B.15 of the Applicable DateDisclosure Schedules or known to the Individual Purchasers, all representationsand except as has not had, certifications and disclosures made by may not reasonably be expected to have, a Material Adverse Effect on the Company and its Subsidiaries Business, with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, Business; (i) neither to the Company nor any knowledge of Lockheed Xxxxxx, none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last five years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitAuthority, or any audit or, to the Knowledge of the Company, or investigation of the Company or any of its Subsidiaries by Lockheed Xxxxxx with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Contract or Government Bid; and (ii) during the last five years, Lockheed Xxxxxx has not conducted or initiated any internal investigation or, to Lockheed Xxxxxx'x knowledge, had reason to conduct, initiate or report any internal investigation, or made a voluntary disclosure to the Knowledge U.S. Government, with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid. Except as set forth in Section B.15 of the Company, there is no current Disclosure Schedules or outstanding civil investigative demand or subpoena issued known to the Company Individual Purchasers, Lockheed Xxxxxx has no knowledge of any irregularity, misstatement or any of its Subsidiaries, nor any of its omission arising under or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract or Government Bid that has led or could reasonably be expected to lead, either before or after the Closing Date, to any of the consequences set forth in clause (i) or (ii) of the immediately preceding sentence or any other material damage, penalty assessment, recoupment of payment or disallowance of cost.
(c) Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and except as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, with respect to the Business, to the knowledge of Lockheed Xxxxxx, there exist (i) no outstanding claims against Lockheed Xxxxxx or any Affiliated Transferor, either by the U.S. Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract or Bid referred to in Section B.15(a) and (iiiii) no disputes between Lockheed Xxxxxx or any Affiliated Transferor and the U.S. Government under the Contract Disputes Act or any other Federal statute or between Lockheed Xxxxxx or any Affiliated Transferor and any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract or Government Bid. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, Lockheed Xxxxxx has no knowledge of any fact that could reasonably be expected to result in a claim or a dispute under clause (i) or (ii) of the immediately preceding sentence.
(d) Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, neither Lockheed Xxxxxx (or any Affiliated Transferor) (with respect to the Company Business), nor to Lockheed Xxxxxx'x knowledge, any of its Subsidiaries employees, consultants or agents is (or during the last five years has made been) suspended or debarred from doing business with the U.S. Government or is (or during such period was) the subject of a finding of nonresponsibility or ineligibility for U.S. Government contracting. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, Lockheed Xxxxxx does not know of any written disclosure under facts or circumstances that would warrant the FAR mandatory disclosure suspension or payment provisions debarment, or the finding of nonresponsibility or ineligibility, on the part of Lockheed Xxxxxx (includingor any Affiliated Transferor) or any of Lockheed Xxxxxx'x (or any Affiliated Transferor's) employees, but not limited to, FAR 52.203-13(b)(3)) consultants or agents. Except as set forth in Section B.15 of the Disclosure Schedules or known to any Governmental Entitythe Individual Purchasers, and no circumstances except as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to Lockheed Xxxxxx'x knowledge, the Lockheed Xxxxxx Companies have existed that would have warranted such a disclosurecomplied with all requirements of all material laws pertaining to all Government Contracts and Bids.
(ke) The Company Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and its Subsidiaries except for any of the following as has not had, and their respective employees possess may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Xxxxxx, all facility test and personnel security clearances necessary inspection results Lockheed Xxxxxx (or any Affiliated Transferor) has provided to perform the U.S. Government pursuant to any Government Contract referred to in Section B.15(a) or to any other Person pursuant to any such Government Contract or as a part of the delivery to the U.S. Government pursuant to any such Government Contract of any article designed, engineered or manufactured in the Business were complete and correct as of the date so provided. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and except for any of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Xxxxxx, Lockheed Xxxxxx (or an Affiliated Transferor) has provided all Material Company test and inspection results to the U.S. Government pursuant to any such Government Contract as required by Applicable Law and the terms of the applicable Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(lf) The Company Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding except for any material work of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Xxxxxx, no statement, representation or material future business opportunities due warranty made by Lockheed Xxxxxx (or an Affiliated Transferor) in any Government Contract, any exhibit thereto or in any certificate, statement, list, schedule or other document submitted or furnished to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company the U.S. Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, Bid (i) contained on the Company and its Subsidiaries comply with DFARS 252.204-7012date so furnished or submitted any untrue statement of a material fact, Safeguarding Covered Defense Information and Cyber Incident Reporting or failed to state a material fact necessary to make the statements contained therein, in all light of the circumstances in which they were made, not misleading or (ii) contains on the date hereof any untrue statement of a material respects fact, or fails to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading, except in the case of both clauses (i) and (ii) since the Applicable Date, the Company and its Subsidiaries have any untrue statement or failure to state a material fact that would not submitted result in any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, material liability to the Knowledge Business as a result of the Company, no circumstances have existed since the Applicable Date that would have warranted such untrue statement or failure to state a reportmaterial fact.
Appears in 2 contracts
Samples: Transaction Agreement (Southern California Microwave Inc), Transaction Agreement (L 3 Communications Holdings Inc)
Government Contracts. (ai) Since the Applicable DateWith respect to each Government Contract, the Company except as would not reasonably be expected to have a Material Adverse Effect on Raindance, (A) all representations and certifications executed, acknowledged or set forth in or pertaining to such Governmental Contract were complete and correct in all material respects as of their effective date, and Raindance and each of its Subsidiaries have complied in all material respects with all such representations and certifications; (B) since January 1, 2005, neither the terms and conditions of each Material Company United States Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company Raindance or any of its Subsidiaries has, in writing that Raindance or is alleged to have, any such Subsidiary has breached or violated in any material respect any Lawcertification, representation, certification, disclosure, clause, provision or requirement requirement, pertaining to such Government Contract; and (C) no termination for convenience, termination for Default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract or Company BidContract.
(dii) To the Knowledge of the CompanyExcept as would not reasonably be expected to have a Material Adverse Effect on Raindance, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsA) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable DateRaindance, neither the Company Raindance nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract their respective personnel have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, ; (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iiiB) neither the Company Raindance nor any of its Subsidiaries has conducted or initiated any internal investigation or made any written a voluntary disclosure under to the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) United States Government with respect to any Governmental Entityalleged irregularity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries misstatement or omission arising under or relating to the safeguarding of a Government Contract; and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(lC) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or neither Raindance nor any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andnor, to the Knowledge of Raindance, any of their respective personnel have been suspended or debarred from doing business with the CompanyUnited States Government or is, no circumstances have existed since or at any time has been, the Applicable Date that would have warranted such subject of a reportfinding of nonresponsibility or ineligibility for United States Government contracting.
Appears in 2 contracts
Samples: Merger Agreement (Raindance Communications Inc), Merger Agreement (West Corp)
Government Contracts. (a) Since Except as would not reasonably be expected to have, individually or in the Applicable Dateaggregate, a Material Adverse Effect on the Company, (i) each Government Contract for which the period of performance has not been completed or for which final payment has not been received is a valid and binding obligation of the Company or its Subsidiaries and, to the Company’s knowledge, of each other party thereto and, to the Company’s knowledge, is in full force and effect and enforceable in accordance with its terms and conditions, and (ii) to the Company’s knowledge, no Government Contract is currently the subject of bid protest proceedings.
(b) To the Company’s knowledge and except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, at all times since January 1, 2020, (A) the Company and its Subsidiaries Subsidiaries, as applicable, have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as requiredall Laws applicable to each Government Contract, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein reference; (including, but not limited to, B) the representations and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and or its Subsidiaries Subsidiaries, as applicable, with respect to any each Government Contract or Company and Government Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each caseaccurate, in all material respects, as of their respective effective datedates and the Company or its Subsidiaries, as applicable, have complied with all such representations, certifications, disclosures and warranties; and (C) no cure notices, letters of concern or show cause notices have been received in writing by the Company or any Subsidiary with respect to any Government Contract.
(c) Since January 1, 2020, except as has not had and would not reasonably be expected to have, individually or in the Applicable Date through aggregate, a Material Adverse Effect on the date Company (i) all invoices and claims for payment, reimbursement or adjustment, including requests for progress payments and provisional payments, submitted or on behalf of this Agreementthe Company or any of its Subsidiaries in connection with a Government Contract were current, accurate and complete as of their applicable submission dates; (ii) the Company and its Subsidiaries have, to the extent required by applicable Laws and the terms of their Government Contracts, maintained systems of internal controls, including quality control systems, cost accounting systems, estimating systems, purchasing systems, proposal systems, billing systems and material management systems, that are in compliance with all requirements of such Government Contracts; (iii) no Governmental Entity nor any prime contractor or subcontractor other Person has notified the Company or any of its Subsidiaries, Subsidiaries in writing or, to the Knowledge knowledge of the Company, orally, orally of any breach or violation of any applicable Law that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining pertains to any Government Contract; and (iv) no Government Contract or Company Bidhas been terminated for default.
(d) To the Knowledge of the CompanySince January 1, 2020, neither the Company nor any of its Subsidiaries hasnor any of their respective Principals (as defined in 48 C.F.R. § 2.101) has been debarred, since suspended, proposed for debarment or otherwise excluded from participation in the Applicable Date, received or is subject to any notice award of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice government contracts (excluding for this purpose ineligibility to bid on certain Contracts contracts due to generally generally-applicable bidding requirements).
(e) (orExcept as would not be reasonably expected to be, individually or in the case of Contracts governed by Laws other than aggregate, material to the state or federal Laws of the United StatesCompany and its Subsidiaries, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, andtaken as a whole, since the Applicable DateJanuary 1, no Governmental Entity has2020, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge knowledge of the Company, oral notice from of any non-routine audit, review, inspection, survey, examination of records or investigation by any Governmental Entity pertaining that pertains to any Material Company a Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
Contract; (e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (iii) neither the Company nor any of its Subsidiaries has made any voluntary or mandatory disclosure (or been the subject of required to make such a written finding of non-responsibility or ineligibility for government contracting and (iidisclosure) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement misstatement, significant overpayment or omission violation of Law arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current Contract or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and Bid; (iii) neither the Company nor any of its Subsidiaries has made any written disclosure represented itself as a small business concern, a small disadvantaged business, a service-disabled, veteran-owned small business concern, a veteran-owned small business concern, a women-owned business concern, a “protégé” under a mentor-protégé agreement or program, a Historically Underutilized Business Zone small business concern, or a participant in the FAR mandatory disclosure program established under Section 8(a) of the Small Business Act, as defined by the relevant Small Business Administration regulations or payment provisions received a Government Contract or benefit restricted to Persons having such status; and (includingiv) there have been no actual or, but not limited toto the knowledge of the Company, FAR 52.203-13(b)(3)) threatened disputes, claims, requests for equitable adjustments, action or proceedings asserted by or against a Governmental Entity or other Persons pertaining to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureGovernment Contract or Government Bid.
(kf) The Neither the Company and nor any of its Subsidiaries and (nor any of their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding acting on behalf of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with Subsidiaries) currently hold any Material Company Government Contract and made available facility or personnel security clearances or national industrial security authorizations or accreditations that are necessary to Parent or its outside legal counsel prior to conduct the date business of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportas currently being conducted.
Appears in 2 contracts
Samples: Merger Agreement (Evoqua Water Technologies Corp.), Agreement and Plan of Merger (Xylem Inc.)
Government Contracts. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on UTC, (ai) Since each Government Contract to which UTC RemainCo or its subsidiaries is a party was legally awarded, is binding on UTC RemainCo or its applicable subsidiary, and is in full force and effect, (ii) no such Government Contract or offer, quotation, bid or proposal to sell products or services made by UTC RemainCo or any of its subsidiaries to any Governmental Entity or any prime contractor is currently the Applicable Datesubject of bid or award protest proceedings, the Company (iii) UTC RemainCo and its Subsidiaries have complied subsidiaries are in all material respects compliance with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company such Government Contract or Material Company Bid).
offer, quotation, bid or proposal, (biv) Since since January 1, 2017, neither the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company UTC RemainCo or any of its Subsidiaries, subsidiaries in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries it has, or is alleged to have, breached or violated in any material respect any Applicable Law, representation, certification, disclosure, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
offer, quotation, bid or proposal, (dv) To the Knowledge of the Companysince January 1, 2017, neither the Company UTC RemainCo nor any of its Subsidiaries has, since the Applicable Date, received or is subject subsidiaries has made any voluntary disclosure to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining with respect to any Material Company Government Contract indicating that it intends to cancel alleged irregularity, misstatement, omission, fraud or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Dateprice mischarging, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge violation of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other handApplicable Law, arising under or relating to any a Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (iivi) neither the Companynone of UTC RemainCo, any of its Subsidiaries nor subsidiaries or any director or officer of the Company or its Subsidiaries their respective “Principals” (as defined in Federal Acquisition Regulation 52.209-5) has been debarred debarred, suspended or suspendedexcluded, or to the Knowledge knowledge of the Company UTC, proposed for a finding of debarment debarment, suspension or suspensionexclusion, from participation in or the award of Contracts contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity doing business with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Raytheon Co/)
Government Contracts. With regard to each Government Contract, within the last three (a3) Since the Applicable Date, the Company years (i) all representations and its Subsidiaries have complied certifications applicable to such Government Contract and associated bids or proposals were accurate in all material respects with the terms when made and conditions of each Material Company Government Contract and Material Company Bid have been updated as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein ; (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”ii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made invoices submitted by the Company and its Transferred Subsidiaries or, with respect to any Government Contract or Company Bid the Business, Sellers and their Controlled Affiliates were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, and any required adjustments have been promptly credited and reported to the applicable customer and recorded in the financial records of the Transferred Subsidiaries or Seller or its Controlled Affiliate, as applicable; (iii) neither the Transferred Subsidiaries nor, with respect to the Business, Sellers or any of their effective date.
Controlled Affiliates are required to make or maintain any cost accounting or any pricing disclosure or guarantee, or to maintain any security clearance, accounting or property system, or performance or surety bond; (civ) Since none of the Applicable Date through Transferred Subsidiaries or, with respect to the date Business, Sellers or their Controlled Affiliates has claimed or been awarded a Government Contract because of this Agreement“small business” status or other preferred bidder status; (v) none of the Transferred Subsidiaries, Sellers or their Controlled Affiliates, nor any of their respective Principals (as that term is defined by 48 C.F.R. § 2.101), has been suspended, debarred, or otherwise excluded from contracting with a Governmental Authority or been notified in writing of any proposed suspension, debarment or exclusion or received any show cause notice from a suspending, debarring or excluding official; (vi) no Governmental Entity Authority nor any prime contractor or subcontractor has notified the Company Transferred Subsidiaries or, with respect to the Business, Sellers or any of its their Controlled Affiliates of any breach or violation of any applicable Law, (vii) no Transferred Subsidiary nor, with respect to the Business, Sellers or their Controlled Affiliates has conducted an internal investigation for which it engaged outside counsel or a forensic accounting firm, nor made any voluntary or mandatory disclosure to any Governmental Authority with respect to any irregularity, misstatement, significant overpayment, or actual, alleged or potential violation of Law, (viii) the Transferred Subsidiaries and Sellers and their Controlled Affiliates, as applicable, have complied with all Laws applicable to each Government Contract and the terms and conditions of each Government Contract; (ix) none of the Transferred Subsidiaries, in writing or, Sellers or their Controlled Affiliates has received or been provided written (nor to the Knowledge of the CompanySellers, orallyany oral) cure notice, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenienceshow cause notice, notice of termination for default, stop work order, material cure notice investigation or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing audit by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved Authority; and (iix) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set offexecution, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award delivery or performance of any Government Contractthis Agreement will not result in a material violation, the subject of any actual breach or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising default under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure will not require novation under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)42.12.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Government Contracts. (a) Since Except where the Applicable Datefollowing matters have not had or would not be reasonably expected to have a Company Material Adverse Effect, to the knowledge of the Company, with respect to Executory Government Contracts or outstanding Bids to which the Company or any of its Subsidiaries is a party (i) the Company and each of its Subsidiaries have has complied in all material respects with the all material terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company such Government Contract or Material Company Bid).
, (bii) Since the Applicable Date, all representations, certifications and disclosures made by the Company and each of its Subsidiaries has complied in all material respects with respect all requirements of statute, rule, regulation, order or agreement with the U.S. Government pertaining to any such Government Contract or Bid, (iii) the Company Bid were current, accurate and complete at the time each of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, its Subsidiaries has complied in all material respectsrespects with all representations and certifications executed, acknowledged or set forth in such Government Contract or Bid, (iv) as of their effective date.
(c) Since the Applicable Date through the date of this Agreementhereof, no Governmental Entity nor any prime contractor or subcontractor the U.S. Government has not notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallywriting, that the Company or any of its Subsidiaries has, or is alleged to have, has breached or violated in any material respect any Lawstatute, rule, regulation certification, representation, certification, disclosure, clause, provision or requirement pertaining to any such Government Contract or Bid, and (v) as of the date hereof, no termination for default has been received by the Company, and no cure notice or show cause notice has been received by the Company and not resolved or cured pertaining to such Government Contract or Bid.
(db) To the Knowledge knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries is (or for the last three years has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (iibeen) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitinformation, or any audit or(other than routine contract audits) or internal investigation, to the Knowledge of the Companyindictment or information, or audit (other than routine contract audits) or internal investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to its performance under any material Government ContractContract or Bid, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under a Voluntary Disclosure pursuant to the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) Department of Defense Fraud Voluntary Disclosure Program with respect to any Governmental Entityalleged irregularity, and no circumstances misstatement or omission arising under or relating to its performance under any material Government Contract or Bid that has led or could lead, either before or after the Closing Date, to any of the consequences set forth in (i) or (ii) above or any other damage, penalty assessment, recoupment of payment or disallowance of cost, except the imposition of which would not be reasonably expected to have existed that would have warranted such a disclosureCompany Material Adverse Effect.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsNeither the Company, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or nor any of its Subsidiaries in connection is (or at any time during the last three years has been) suspended or debarred from doing business with any Material Company the U.S. Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company has been declared nonresponsible or ineligible for U.S. Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) contracting. Neither the Company and its Subsidiaries comply with DFARS 252.204-7012nor any Subsidiary has, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since within the Applicable Datepast three years, the Company and its Subsidiaries have not submitted been terminated for default under any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportGovernment Contract.
Appears in 2 contracts
Samples: Merger Agreement (Axway Inc.), Merger Agreement (Tumbleweed Communications Corp)
Government Contracts. (a) Since Except as set forth in Schedule 3.23(a) of the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orSeller Disclosure Letter, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable DateSellers, (i) neither none of the Company nor any of its Subsidiaries Business Employees is or during the last three (3) years has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (iiexcept as to routine security investigations) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by a U.S. Governmental Authority, (ii) there is no pending audit or investigation by any U.S. Governmental Entity with respect to Authority of the award or performance of any Government ContractConveyed Entities, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, Business or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Business Employee with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract and (iii) neither since September 26, 2008 none of the Company Conveyed Entities has, and during the last three (3) years, to the Knowledge of Sellers, no prior owner of the Business has, made a voluntary disclosure with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract with respect to the Business, other than inquiries, audits and reconciliations that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. Neither of the Sellers, nor to the Knowledge of Sellers any of its Subsidiaries the Business Employees, has made any written intentional misstatement or omission in connection with any voluntary disclosure under relating to the FAR mandatory disclosure Conveyed Entities or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) the Business that has led to any Governmental Entityof the consequences set forth in clause (i) or (ii) of the immediately preceding sentence or any other material damage, and no circumstances have existed that would have warranted such a disclosurepenalty assessment, recoupment of payment or disallowance of cost.
(kb) The Company and Except as set forth in Schedule 3.23(b) of the Seller Disclosure Letter, to the Knowledge of Sellers, there are no disputes between any Conveyed Entity or its Subsidiaries and a U.S. Governmental Authority under the Contract Disputes Act or any other federal statute or between Sellers and any of their respective employees possess all facility Affiliates and personnel security clearances necessary any prime contractor, subcontractor or vendor arising under or relating to perform all any such Government Contract with respect to the Business, except any such claim or dispute that would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(c) Except as set forth in Schedule 3.23(c) of the Seller Disclosure Letter, none of the Conveyed Entities and, to the Knowledge of Sellers, any of the Business Employees is (or during the last two years has been) suspended or debarred from doing business with a U.S. Governmental Authority or is (or during such period was) the subject of a finding of non-responsibility or ineligibility for U.S. Government contracting.
(d) Except as set forth in Schedule 3.23(d) of the Seller Disclosure Letter, none of the Conveyed Entities and, to the Knowledge of Sellers, any of the Business Employees, has received written notice of a termination for default or convenience, cure notice, or show cause notice from any U.S. Governmental Authority with respect to performance by the Company as a subcontractor of any portion of the obligation of a Government ContractsContract.
(e) Except as set forth in Schedule 3.23(e) of the Seller Disclosure Letter, (i) the representations, certifications, and warranties made by the Conveyed Entities and, to the Knowledge of Sellers, any of the Business Employees, in any Government Contract, were accurate in all such security clearances are valid material respects as of their effective date, and in full force and effect. Since Conveyed Entities and, to the Applicable DateKnowledge of Sellers, the Company and its Subsidiaries Business Employees have complied in all material respects with all security obligations incorporated in any Material Company Government Contract such representations, certifications and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationwarranties, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Dateno past performance evaluation received by Sellers, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise Conveyed Entities and, to the Knowledge of Sellers, any of the CompanyBusiness Employees, no with respect to any such Government Contract has set forth a default or other failure to perform thereunder or termination or default thereof, and (iii) Conveyed Entities and, to the Knowledge of Sellers, the Business Employees, have complied in all material respects with all terms and conditions of any Government Contract.
(f) Except as set forth in Schedule 3.23(f) of the Seller Disclosure Letter, neither Sellers, the Conveyed Entities, any of their Subsidiaries, nor to the Knowledge of Sellers, any of the Business Employees, are aware of any facts or circumstances have existed since that are reasonably likely to give rise to the Applicable Date that would have warranted such revocation of any security clearance of the Seller, the Conveyed Entities, or any of the Business Employees, either prior to or as a reportresult of the transactions contemplated herein.
Appears in 2 contracts
Samples: Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied Except as set forth in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”Schedule 3.09(a), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company Business Employees is (or its Subsidiaries during the past 18 months has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as suchbeen), is or has been except as to routine security investigations, under administrative, civil or criminal investigation, indictment or criminal information by any a Governmental Entity with respect Authority, (ii) there is no pending (or to the award knowledge of Seller, threatened) audit or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company Business or any of its Subsidiaries Business Employee with respect to any alleged material irregularity, impropriety, violation, misstatement or omission arising under or relating to a Government Contract or Government Contract Bid, (iii) no termination for convenience, termination for default, stop work, cure notice or show cause notice has been issued with respect to any Government Contract, and (iv) during the past 18 months, neither Seller nor its Affiliates has made a voluntary or mandatory disclosure with respect to any alleged irregularity, impropriety, violation, misstatement or omission arising under or relating to a Government Contract or Government Contract Bid with respect to the Business, other than inquiries, audits and reconciliations that would not, individually or in the aggregate, materially affect the Business. Neither Seller and its Affiliates nor any of the Business Employees has made any material misstatement or omission in connection with any disclosure that has led to, or would be reasonably expected to lead to, any of the consequences set forth in clause (i), (ii) or (iii) of the immediately preceding sentence or any other material damage, penalty assessment, recoupment of payment or disallowance of cost.
(b) Except as set forth in Schedule 3.09(b), there are (i) no material claims pending (or to the Knowledge knowledge of Seller, threatened) against Seller or its Affiliates by a Governmental Authority or by any prime contractor, subcontractor, or vendor arising under any Government Contract or Government Contract Bid with respect to the Business and (ii) no material disputes pending (or to the knowledge of Seller, threatened) between Seller or its Affiliates and any Governmental Authority or between Seller or its Affiliates and any prime contractor, subcontractor, or vendor of the Company, there is no current Business arising under or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and or Government Contract Bid with respect to the Business.
(iiic) Except as set forth in Schedule 3.09(c), neither the Company Seller nor any of its Subsidiaries the Business Employees is (or during the past 18 months has made any written disclosure under the FAR mandatory disclosure been) suspended, debarred or payment provisions proposed for or threatened with debarment or suspension, otherwise determined ineligible or disqualified from doing business with a Governmental Authority or is (including, but not limited to, FAR 52.203or during such period was) subject of a finding of non-13(b)(3)) to any responsibility or ineligibility for contracting with a Governmental Entity, and no circumstances have existed that would have warranted such a disclosureAuthority.
(kd) The Company Seller and its Subsidiaries Affiliates are (and for the past 3 years have been) in compliance, in all material respects, with all Applicable Laws relating to obtaining, administering and performing their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company Seller and its Subsidiaries Affiliates have complied not engaged in any conduct with regard to any Government Contract or Government Contract Bid that would constitute a criminal violation or a civil fraud or a basis for suspension or debarment.
(e) All test and inspection results that Seller or any of its Affiliates has provided to any U.S. federal Governmental Authority pursuant to any Government Contract relating to the Business or to any other Person pursuant to any such Government Contract or as part of the delivery to the U.S. federal Governmental Authorities pursuant to any such Government Contract of any article designated, engineered or manufactured in the Business were complete and correct in all material respects with as of the date so provided. Seller and its Affiliates have provided all security obligations incorporated in any Material Company Government Contract test and all national security obligations applicable inspection results to the Company and its Subsidiaries relating appropriate U.S. federal Governmental Authority pursuant to all Government Contracts related to the safeguarding Business as required by Applicable Law and the terms of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117applicable Government Contracts.
(lf) The Company and Schedule 3.09(f) sets forth all of the material facility security clearances held by Seller or its Subsidiaries Affiliates with respect to the Purchased Assets or the Business other than any facility security clearances that are not currently limited, prohibited or otherwise restricted from performing or bidding for permitted to be disclosed under any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Applicable Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tyco Electronics Ltd.), Asset Purchase Agreement (Harris Corp /De/)
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company Neither Seller nor any of its Subsidiaries hasis or has been suspended or debarred (within the meaning of 48 C.F.R. Ch. 1, since Section 52 or any similar foreign law, statute or regulation) from bidding on contracts or subcontracts with any Governmental Entity; to the Applicable Dateknowledge of Seller, received no such suspension or is subject to debarment has been initiated or threatened; and the consummation of the transactions contemplated by this Agreement will not result in any notice of termination for conveniencesuch suspension or debarment that, notice of termination for default, stop work order, material cure notice individually or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws aggregate, is reasonably likely to have a Seller Material Adverse Effect (other than the state or federal Laws primarily by reason of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge identity of the Company, threatened to issue any such noticeBuyer). Since the Applicable Date, neither the Company Neither Seller nor any of its Subsidiaries has received any written since January 1, 1993 been audited or investigated or is now being audited or, to Seller's knowledge, investigated by the Knowledge U.S. Government Accounting Office, the U.S. Department of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company Defense or any of its Subsidiariesagencies, the Defense Contract Audit Agency, the U.S. Department of Justice, the Inspector General of any U.S. Governmental Entity, any similar agencies or instrumentalities of any foreign Governmental Entity, or any prime contractor with a Governmental Entity nor, to Seller's knowledge, has any such audit or investigation been threatened that is reasonably likely, individually or in the aggregate, to have a Seller Material Adverse Effect. To Seller's knowledge, there is no valid basis for (a) the suspension or debarment of Seller or any of its Subsidiaries from bidding on the one hand, and either the applicable contracts or subcontracts with any Governmental Entity or (b) any prime contractorclaim pursuant to an audit or investigation by any of the entities named in the foregoing sentence that is reasonably likely, subcontractorindividually or in the aggregate, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company have a Seller Material Adverse Effect. Neither Seller nor any of its Subsidiaries has received in writing any material adverse agreements, contracts or negative past performance evaluations commitments which require it to obtain or ratings in connection maintain a security clearance with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Quarterly Report, Merger Agreement (Eg&g Inc)
Government Contracts. (a) Since Except as set forth in Section 4.19 of the Applicable DateDisclosure Schedule and except as would not in the aggregate reasonably be expected to have a Material Adverse Effect, with respect to each and every government contract and subcontract under a government contract, (collectively "GOVERNMENT CONTRACT") of the Company and its Subsidiaries: (i) the Company and its Subsidiaries have complied in all material respects with the terms all material terms, conditions, representations and conditions certifications of each Material government contract and proposal submitted for any such government contract; (ii) the Company Government Contract and Material Company Bid as requiredits Subsidiaries have complied in all respects with all requirements of all applicable Laws or agreements, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, the cost accounting standards and as may be applicablecost principles, the Truthful Cost pertaining to each government contract and Pricing Data Actproposal submitted for any such government contract; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards(iii) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect or threatened pertaining to any government contract and proposal submitted for any such agreement contract; and applicable and material Federal Acquisition Regulation (“FAR”), Department iv) no Governmental Entity has provided the Company or its Subsidiaries with written notice of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made cost incurred by the Company and its Subsidiaries with respect pertaining to such government contract which has been questioned, challenged or disallowed or has been the subject of any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective dateinvestigation.
(cb) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, Except as set forth in writing or, to the Knowledge Section 4.19 of the CompanyDisclosure Schedule, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(di) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries nor, to the best knowledge of the Company, any of their directors, officers, employees, consultants or agents engaged in connection with any Government Contract to which the business of the Company or its Subsidiaries is (or during the last six years has been) under administrative, civil or criminal investigation, notice of proposed debarment or suspension, indictment or information or equivalent official governmental charge or allegation by any Governmental Entity or other Person with respect to any alleged irregularity, misstatement or omission or other matter arising under or relating to any government contract or proposal submitted for any such government contract and (ii) except as would not in the aggregate reasonably be expected to have a partyMaterial Adverse Effect, there is no irregularity, misstatement or omission or other matter arising under or relating to any government contract or proposal therefore that has led or could reasonably be expected to lead, either before or after the Effective Time, to any of the consequences set forth in clause (i) of this sentence.
(fc) To Except as set forth in Section 4.19 of the Knowledge of Disclosure Schedule and except as would not in the aggregate reasonably be expected to have a Material Adverse Effect on the Company, as of the date of this Agreement, there exists exist (i) no outstanding asserted claims, requests for equitable adjustment, audits, disputes or claims other contractual action for an amount in excess of $25,000,000 between relief against the Company or any of and its Subsidiaries, on either by the one hand, and either the applicable Governmental Entity U.S. Government or by any prime contractor, subcontractor, vendor or other Person, on the other handperson, arising under or relating to any Government Contract government contract, performance of any government contract or Company Bid.
(g) Since the Applicable Dateotherwise, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Companyno settlement, compromise or similar agreements waiving, releasing or abandoning any of its Subsidiaries nor any director claim, entitlement, right or officer defense of the Company or its Subsidiaries has been debarred or suspended, or relating to the Knowledge U.S. Government, any prime contractor, subcontractor, vendor or other person. 17
(d) Except as set forth in Section 4.19 of the Company proposed for a finding of debarment or suspension, from participation Disclosure Schedule and except as in the award aggregate would not reasonably be expected to have a Material Adverse Effect, no government contract contains Organization Conflict of Contracts Interest ("OCI") clauses or subcontracts for other similar provisions that might restrict or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company preclude Parent or any of its Subsidiaries pertaining affiliates from supplying products or services to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosuresupplier thereto.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Merger Agreement (Gte Corp), Agreement and Plan of Merger (BBN Corp)
Government Contracts. (ai) Since The Seller represents that it is performing all Government Contracts in compliance with all applicable laws, regulations, executive orders, and contract-specific requirements, except for such non-compliance as would not be reasonably likely to have a Material Adverse Effect. This representation includes both performance and compliance obligations agreed to by the Applicable DateSeller in its Government Contracts, the Company and its Subsidiaries have complied whether those obligations are expressly stated in all material respects with the terms and conditions of each Material Company Seller's Government Contract and Material Company Bid as required, including all clauses, provisions and requirements Contracts or incorporated expressly into those Government Contracts by reference or by operation of Law therein (including, but not limited to, and as may be applicable, to the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“"FAR”"), Department of Defense FAR Supplement (“DFARS”) Agency supplements to the FAR, or other Agency acquisition regulations. This representation includes all Government Contracts entered into or performed by the Seller since its inception, and agency FAR supplement clauses in any Material Company all active or expired Government Contract or Material Company Bid)Bids.
(bii) Since The Seller represents that it is not in default in the Applicable Dateperformance of any Government Contracts, all representationsexcept for such default as would not be reasonably likely to have a Material Adverse Effect, certifications and disclosures made by no termination for convenience, termination for default, cure notice or show cause notice has been issued to the Company and its Subsidiaries Seller with respect to any Government Contract or Company Bid were currentContract, accurate and complete at nor has the time Seller nor any employee of disclosure the Seller is (or have has been formally corrected at any time since inception of the Seller) suspended or otherwise finally resolved debarred from doing business with a Governmental Entity), in each case, in all material respects, as of their effective datethe United States Government or has been declared non-responsible or ineligible for United States Government contracting.
(ciii) Since Except as disclosed on the Applicable Date through Financial Statements, during the date of this Agreementlast five (5) years, no Governmental Entity nor the Seller has not made any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, voluntary disclosure in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Body with respect to any material alleged material irregularity, misstatement or omission arising under or relating to a Government Contract or Government Contract Bid, has not received any official notice that it is or was being specifically audited (other than routine DCAA or similar audits) or investigated by the Government Accountability Office, any state or federal agency Inspector General, the contracting officer with respect to any Government Contract, Contract or the Department of Justice (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or including any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as suchUnited States Attorney), and has not received any written notice of any outstanding claims against it arising under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor or any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but Prior Government Contract which have not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosurebeen settled.
(kiv) The Company Seller represents that no Government Contracts have funding limits which have been exceeded or which, in the reasonable judgment of the Seller's senior management based upon existing facts and its Subsidiaries the Seller's current standards and their respective employees possess all facility practices, are likely to be exceeded in order to complete the contract work. In the reasonable judgment of the Seller's senior management based upon existing facts and personnel security clearances necessary the Seller's current standards and practices, no Government Contracts that are fixed price contracts will be completed at a loss. Seller further represents that no money due to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in Seller under any Material Company Government Contract and all national security obligations applicable has been withheld or set-off or has been subject to the Company and its Subsidiaries relating attempts to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117withhold or set-off.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Primedia Inc), Asset Purchase Agreement (Trinity Learning Corp)
Government Contracts. (a) Since Except for the Applicable DateRolls Royce T-56 Engine Parts Contract, the Company has no material Government Contracts.
(b) Except as set forth in Schedule 4.21, (i) each of the Company and ------------- its Subsidiaries is in compliance, and has complied, in all material respects during the past three years with all requirements of any statute, law, rule or regulation pertaining to its Government Contracts; (ii) all representations and certifications made by each of the Company and its Subsidiaries have during the past three years with respect to such Government Contracts were accurate in all material respects as of their effective date, and each of the Company and its Subsidiaries has fully complied in all material respects with the terms such representations and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited tocertifications, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”iii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orhereof, to the Knowledge of the Company, orallyno termination or default, that the Company cure notice or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidshow cause notice has been issued and remains unresolved.
(dc) To the Knowledge of the CompanyExcept as set forth in Schedule 4.21, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsi) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the ------------- Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under any administrative, civil or criminal investigation, investigation or indictment or criminal information by any Governmental Entity with respect to the award or performance conduct of any Government Contractthe business of each of the Company and its Subsidiaries, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, (ii) to the Knowledge of the Company, there is no pending material U.S. governmental investigation of the Company or any of its Subsidiaries Subsidiaries, or any of their respective officers, employees, consultants or agents, nor has there been any material U.S. governmental investigation of the Company or any of its Subsidiaries, or any of their respective officers, employees, consultants or agents resulting in any material adverse finding with respect to any material alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) during the last three years, neither the Company nor any of its Subsidiaries has made any written voluntary disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) in writing to any Governmental EntityEntity with respect to any material alleged irregularity, and no circumstances have existed that would have warranted such a disclosuremisstatement or omission arising under or relating to any Government Contract.
(kd) Except as set forth in Schedule 4.21, as of the date of this ------------- Agreement, there are no outstanding written material claims that have been asserted against the Company, or any of its Subsidiaries, by any Governmental Entity or by any prime contractor, subcontractor, vendor or other third party arising under or relating to any Government Contract to which the Company or any of its Subsidiaries is a party.
(e) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary are not subject to perform all Material Company the United States Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, cost accounting rules.
(f) Each of the Company and its Subsidiaries have complied is in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including including, without limitation, those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
DOD 5220.22-M (l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar LawJanuary 1995).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tc Group LLC), Securities Purchase Agreement (Tc Group LLC)
Government Contracts. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:
(a) Since during the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein past three (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”3) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, years no material written or, to the Knowledge quantities of the Company, oral claim (other than any such claim that has been formally corrected products delivered or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred services performed by the Company or any of its Subsidiaries pertaining to under any individual Company Government Contract have been questioned, proposed for disallowancerejected by any Governmental Authority, or deemed finally disallowedprime contractor or subcontractor (at any tier) as not complying with contract specifications or requirements, in each caseand no termination for convenience, in writing by a Governmental Entity termination for default, cure notice or show cause notice has been issued and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and remains unresolved;
(iib) no payment material amount due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set offoff by or on behalf of a Governmental Authority, nor has or prime contractor or subcontractor (at any claim been made tier) with respect to withhold or set off money, in each case, in an amount in excess of $10,000,000.any Government Contract;
(jc) Since the Applicable Date, (i) neither the Company nor any and each of its SubsidiariesSubsidiaries is in compliance with all obligations specified in the National Industrial Security Program Operating Manual, nor any of the respective directors, officers or employees, nor, DOD 5220.22-M (January 1995);
(d) to the Knowledge of the Company, no employee of the Company, or any consultants of its Subsidiaries is (or agents during the last eighteen (18) months has been) under any administrative, civil or criminal investigation or indictment by any Governmental Authority with respect to the conduct of the business of the Company or any of its Subsidiaries Subsidiaries;
(in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, e) to the Knowledge of the Company, there is no pending material investigation by a Governmental Authority of the Company, any of its Subsidiaries, or any of its respective officers, employees or representatives, nor within the last three (3) years has there been any material investigation by a Governmental Authority of the Company or any of its Subsidiaries Subsidiaries, or any of its respective officers, employees or representatives resulting in any finding with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government ContractContract or bid (other than routine audits);
(f) during the last three (3) years, (ii) to the Knowledge except as set forth on Section 3.20 of the CompanyDisclosure Schedule, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written voluntary disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) in writing to any Governmental EntityAuthority with respect to any material alleged irregularity, and no circumstances have existed that would have warranted such a disclosure.misstatement or omission arising under or relating to any Government Contract or bid;
(kg) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contractssince January 1, and all such security clearances are valid and in full force and effect. Since the Applicable Date, 2001 neither the Company and its Subsidiaries have complied in all material respects nor any Subsidiary has been suspended or debarred from bidding on contracts or subcontracts for or with all security obligations incorporated in any Material Company Governmental Authority; and
(h) no suspension or debarment actions with respect any Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andbeen commenced or, to the Knowledge of the Company, no circumstances have existed since threatened in writing against the Applicable Date that would have warranted such a reportCompany or any of its Subsidiaries or, to the Knowledge of the Company, any of their respective officers, directors or employees.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American Airlines Inc), Stock Purchase Agreement (Amr Corp)
Government Contracts. (a) Since In connection with the Applicable Date, business of the Company and its Subsidiaries:
(a) With respect to each Government Contract and Government Subcontract, since January 1, 2006: (i) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Subcontract, including all clauses, provisions and requirements incorporated expressly expressly, by reference reference, or by operation of Law therein therein; (includingii) each of the Company, but not limited to, its Subsidiaries and their respective Affiliates that are presently responsible (as may be applicable, defined in the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation Regulation, 48 CFR Parts 1-53 (the “FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses have complied in any Material Company all material respects with all applicable Laws or agreements pertaining to such Government Contract or Material Company BidGovernment Subcontract, including, where applicable, the Federal Information Security Management Act of 2002, 44 U.S.C. § 3541 (and its implementing regulations).
, the Truth in Negotiations Act of 1962, as amended, the Service Contract Act of 1965, as amended, the Office of Federal Procurement Policy Act, 41 USC 423, as amended, the federal criminal bribery and gratuity laws, 18 USC 201, as amended, the FAR and the Company’s Cost Accounting Standards disclosure statement, if any; (biii) Since the Applicable Date, all representations, representations and certifications and disclosures made by of the Company and its Subsidiaries with respect executed, acknowledged or set forth in or pertaining to any such Government Contract or Company Bid Government Subcontract were currenttrue, accurate complete and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
date and each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all such representations and certifications; (civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor Authority or any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company Company, its Subsidiaries or any of its Subsidiariestheir respective Affiliates, either in writing or, or to the Knowledge of the Company, orally, that the Company Company, its Subsidiaries or any of its Subsidiaries has, or is alleged to have, such Affiliate has breached or violated in any material respect any Law, representationenactment, certification, disclosureregulation, representation, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
Government Subcontract; (dv) To no termination for convenience, termination for default, cure notice, show cause notice, or stop work order is currently in effect pertaining to such Government Contract or Government Subcontract; (vi) to the Knowledge of the Company, neither no material claim for costs incurred by the Company, its Subsidiaries or any of their respective Affiliates pertaining to such Government Contract or Government Subcontract has been challenged in writing, is the subject of any investigation (other than in connection with a routine audit) or has been disallowed by any Governmental Authority; and (vii) no material money due to the Company nor or any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company such Government ContractContract or Government Subcontract has been withheld, reduced or set off, and no material claim has been made to withhold or set off money and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor and its Subsidiaries are entitled to all progress payments received with respect thereto.
(b) None of the Company, its Subsidiaries or any of its Subsidiaries has received any written ortheir respective Affiliates and, to the Knowledge of the Company, oral none of their respective directors, officers, employees, consultants or agents are, or since January 1, 2006 have been, under or received any notice from of any planned or threatened administrative, civil or criminal investigation, indictment or information by any Governmental Entity pertaining Authority or any audit or investigation by the Company, its Subsidiaries or any of their respective Affiliates with respect to any Material Company alleged act or omission arising under or relating to any Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable DateGovernment Subcontract and since January 1, no material written or2006, to the Knowledge none of the Company, oral claim its Subsidiaries or any of their respective Affiliates has conducted or initiated any internal investigation (other than any such claim an informal investigation that has been formally corrected or otherwise finally was resolved with without the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United Statesneed for further action) or other criminal made a voluntary disclosure to any Governmental Authority with respect to any actual or suspected violation of Law has been made arising under or has been pending against the Company or its Subsidiaries in connection with any relating to a Government Contract to which the Company or its Subsidiaries is a partyGovernment Subcontract.
(fc) To the Knowledge of There are no, and since January 1, 2006 there have not been any, (i) outstanding claims against the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company its Subsidiaries or any of its Subsidiariestheir respective Affiliates, on the one hand, and either the applicable by any Governmental Entity Authority or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract or Government Subcontract and (ii) disputes between the Company, its Subsidiaries or their respective Affiliates, on the one hand, and the United States government, on the other hand, under the Contract Disputes Act of 1978, 41 USC 601-613, as amended, or any other U.S. federal statute or between the Company, its Subsidiaries and their respective Affiliates, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract or Company BidGovernment Subcontract. None of the Company, its Subsidiaries and their respective Affiliates have any direct financial interest in any pending or potential claim against any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract.
(gd) Since the Applicable DateJanuary 1, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date2006, (i) neither the Company nor any none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the their respective directors, officers or employees, norAffiliates and, to the Knowledge of the Company, any none of their respective directors, officers, employees, consultants or agents have been debarred or suspended from participation in the award of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by Contracts with any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government ContractAuthority, (ii) to the Knowledge of the Company, there is exist no current facts or outstanding civil investigative demand circumstances that would warrant the institution of suspension or subpoena issued to debarment proceedings or the Company finding of nonresponsibility or ineligibility on the part of the Company, its Subsidiaries or any of their respective Affiliates, or any director, officer or employee of the Company, its Subsidiaries, nor Subsidiaries or any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract Affiliates and (iii) neither the Company’s and its Subsidiaries’ cost accounting and procurement systems and the associated entries reflected in the Company’s financial statements included in the Filed Company nor SEC Reports with respect to the Government Contracts and Government Subcontracts have been in compliance in all material respects with applicable Laws.
(e) To the Knowledge of the Company, no statement, representation or warranty made by the Company, its Subsidiaries or any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) their respective Affiliates to any Governmental EntityAuthority in connection with any Government Contract or Government Subcontract or to another party where the ultimate contracting party is a Governmental Authority contained on the date so furnished or submitted any untrue statement of material fact, and no or failed to state a material fact necessary to make the statements contained therein, in light of the circumstances have existed that would have warranted such a disclosurein which they were made, not misleading.
(kf) None of the Company, its Subsidiaries or any of their respective Affiliates are in possession of any material property owned by any Governmental Authority, including test equipment, provided under, necessary to perform the obligations under or for which the Surviving Corporation could be held accountable under the Government Contracts and the Government Subcontracts.
(g) The Company and its Subsidiaries and their respective employees possess have all of the facility and personnel security clearances reasonably necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since conduct the Applicable Date, business of the Company and its Subsidiaries have complied as currently conducted. To the Knowledge of the Company, (i) the Company and each of its Subsidiaries are in compliance in all material respects with all security obligations incorporated in any Material Company Government Contract and all applicable national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117DOD 5220.22-M (January 1995), as amended, and there are no facts or circumstances that would reasonably be expected to result in the suspension or termination of such clearances or that would reasonably be expected to render the Company or any of its Subsidiaries ineligible for such security clearances in the future; and (ii) the Company and each of its Subsidiaries are in compliance in all material respects with all security measures required by the Government Contracts, the Government Subcontracts or any applicable Laws.
(lh) The To the Knowledge of the Company, (i) the Company and each of its Subsidiaries are not currently limitedhave complied in all material respects with all timekeeping/time recordation requirements, prohibited if and as applicable to the Government Contracts and the Government Subcontracts, and (ii) neither the Company nor any of its Subsidiaries has any knowledge of any facts or otherwise restricted from performing or bidding for any material work or material future business opportunities due circumstances that would reasonably be expected to “organizational conflicts of interest” (as defined result in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted an investigation by the U.S. government based upon the failure by the Company or any of its Subsidiaries in connection to comply with any Material Company Government Contract such applicable timekeeping/time recordation requirements.
(i) If and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material that the contingent fee prohibitions of FAR subpart 3.4 were applicable to the Company in any Government Contract available Contract, to Parent is prohibited by applicable national security or similar Law)the Knowledge of Company, no payments in violation of the contingent fee prohibitions were made to any Person.
(mj) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances (i) all “commercial computer software” (as defined in 2.101 of FAR) provided by the Company or any Subsidiary to a Governmental Authority has been developed at private expense and (ii) products delivered by the Company or any Subsidiary to the Governmental Authority in connection with a Government Contract or Government Subcontract have existed since the Applicable Date that would have warranted such a reportbeen limited to “commercial items” (as defined in 2.101 of FAR).
Appears in 2 contracts
Samples: Merger Agreement (Verizon Communications Inc), Merger Agreement (Terremark Worldwide Inc.)
Government Contracts. (a) Since In connection with the Applicable Date, business of the Company and its Subsidiaries:
(a) With respect to each Government Contract and Government Subcontract, since January 1, 2003, (i) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Subcontract, including all clauses, provisions and requirements incorporated expressly expressly, by reference reference, or by operation of Law therein therein; (ii) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all applicable Laws or agreements pertaining to such Government Contract or Government Subcontract, including, but not limited to, and as may be where applicable, the Truthful Cost Truth in Negotiations Act and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Company’s Cost Accounting StandardsStandards disclosure statement, if any; (iii) all representations and applicable and material Federal Acquisition Regulation (“FAR”)certifications executed, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications Government Subcontract were complete and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, correct as of their effective date.
date and each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all such representations and certifications; (civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company, its Subsidiaries or any of their respective Affiliates, either in writing or orally, that the Company, its Subsidiaries or any such Affiliate has breached or violated any enactment, certification, regulation, representation, clause, provision or requirement pertaining to such Government Contract or Government Subcontract; (v) no termination for convenience, termination for default, cure notice, show cause notice, or stop work order is currently in effect pertaining to such Government Contract or Government Subcontract; (vi) to the Knowledge of the Company, no claim for costs incurred by the Company, its Subsidiaries or any of their respective Affiliates pertaining to such Government Contract or Government Subcontract has been challenged in writing, is the subject of any investigation (other than in connection with a routine audit) or has been disallowed by any Governmental Entity and (vii) no money due to the Company or any of its SubsidiariesSubsidiaries pertaining to such Government Contract or Government Subcontract has been withheld, in writing orreduced or set off nor has any claim been made to withhold or set off money and, to the Knowledge of the Company, orally, that the Company or any of and its Subsidiaries has, or is alleged are entitled to have, breached or violated in any material all progress payments received with respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidthereto.
(db) To the Knowledge None of the Company, neither the Company nor its Subsidiaries or any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity hastheir respective Affiliates nor, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of their respective directors, officers, employees, consultants or agents is, or since January 1, 2003 has been, under or received any notice of any planned or threatened administrative, civil or criminal investigation, indictment or information by any Governmental Entity or any audit or investigation by the Company, its Subsidiaries has received or any written orof their respective Affiliates with respect to any alleged act or omission arising under or relating to any Government Contract or Government Subcontract and since January 1, to the Knowledge 2003, none of the Company, oral notice from its Subsidiaries or any of their respective Affiliates has conducted or initiated any internal investigation (other than an informal investigation that was resolved without the need for further action) or made a voluntary disclosure to any Governmental Entity pertaining with respect to any Material Company actual or suspected violation of Law arising under or relating to a Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its SubsidiariesGovernment Subcontract.
(ec) Since the Applicable Date, There are (i) no material written or, to the Knowledge of outstanding claims against the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiariestheir respective Affiliates, on the one hand, and either the applicable by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract or Government Subcontract and (ii) no disputes between the Company, its Subsidiaries or their respective Affiliates, on the one hand, and the United States government, on the other hand, under the Contract Disputes Act or any other U.S. federal statute or between the Company, its Subsidiaries and their respective Affiliates, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract or Company BidGovernment Subcontract. None of the Company, its Subsidiaries and their respective Affiliates has any direct financial interest in any pending or potential claim against any Governmental Entity or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract.
(gd) Since the Applicable DateJanuary 1, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date2003, (i) neither the Company nor any none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, its Subsidiaries or any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries their respective Affiliates has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, suspended from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Entity; (ii) to the Knowledge of the Company, there is exist no current facts or outstanding civil investigative demand circumstances that would warrant the institution of suspension or subpoena issued to debarment proceedings or the Company finding of nonresponsibility or ineligibility on the part of the Company, its Subsidiaries or any of their respective Affiliates, or any director, officer or employee of the Company, its Subsidiaries or any of their respective Affiliates and (iii) the Company’s and its Subsidiaries’ cost accounting and procurement systems and the associated entries reflected in the Company’s financial statements included in the Filed Company SEC Reports with respect to the Government Contracts and Government Subcontracts have been in compliance in all material respects with applicable Laws.
(e) Since January 1, nor 2003, (i) all test and inspection results provided by the Company, its Subsidiaries or any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating Affiliates to any Governmental Entity pursuant to any Government Contract and (iii) neither or Government Subcontract or to any other Person pursuant to a Government Contract or Government Subcontract or as a part of the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) delivery to any Governmental EntityEntity or other Person pursuant to a Government Contract or Government Subcontract of any article designed, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and engineered, manufactured or repaired by the Company, its Subsidiaries and or any of their respective employees possess Affiliates were complete and correct in all facility material respects as of the date so provided and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, (ii) the Company and its Subsidiaries have complied in provided all material respects with all security obligations incorporated in test and inspection results to any Material Company Governmental Entity or to any other Person pursuant to a Government Contract or Government Subcontract as required by applicable Law and all national security obligations the terms of the applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Government Contract or Government Subcontract.
(lf) The Company and To the Company’s Knowledge, no statement, representation or warranty made by the Company, its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries their respective Affiliates to any Governmental Entity in connection with any Material Company Government Contract and made available or Government Subcontract or to Parent or its outside legal counsel prior to another party where the ultimate contracting party is a Governmental Entity contained on the date so furnished or submitted any untrue statement of this Agreement (except material fact, or failed to state a material fact necessary to make the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)statements contained therein, in light of the circumstances in which they are made, not misleading.
(mg) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge None of the Company, no circumstances its Subsidiaries or any of their respective Affiliates is in possession of any material property owned by any Governmental Entity, including material, tooling and test equipment, provided under, necessary to perform the obligations under or for which the Surviving Corporation could be held accountable under the Government Contracts and the Government Subcontracts.
(h) Each Government Contract and Government Subcontract was entered into in the ordinary course of business consistent with past practice.
(i) For purposes of this Agreement, the following terms shall have existed since the Applicable Date that would have warranted such a report.definitions set forth below:
Appears in 2 contracts
Samples: Merger Agreement (General Electric Co), Merger Agreement (Idx Systems Corp)
Government Contracts. (a) Since the Applicable DateThe Company has provided to Parent a true and correct list of (i) each prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, pricing agreement, letter contract, grant, cooperative agreement or other similar arrangement of any kind in excess of $75,000, between the Company or any of its subsidiaries, on the one hand, and (A) any Governmental Entity, (B) any prime contractor of a Governmental Entity in its Subsidiaries have complied capacity as a prime contractor or (C) any subcontractor at any tier with respect to a contract with a Governmental Entity if such subcontractor is acting in its capacity as a subcontractor, on the other hand (each, a “Government Contract”) that, in each case, is in effect as of the date of this Agreement and (ii) any offer to sell made by the Company or any of its subsidiaries prior to the Closing Date that, if accepted, would result in a Government Contract and for which an award has not been issued 30 days or more prior to the date of this Agreement (each, a “Government Bid”).
(i) The Company and each of its subsidiaries has fully complied, in all material respects respects, with the terms and conditions of each Material Company Government Contract and Material Government Bid to which it is a party, (ii) the Company Bid as required, including and each of its subsidiaries has complied in all clauses, provisions and material respects with all requirements incorporated expressly by reference or by operation of any Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company pertaining to such Government Contract or Material Company Government Bid).
, (biii) Since the Applicable Date, all representations, representations and certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiariessubsidiaries with respect to such Government Contract or Government Bid were accurate, current and complete in all material respects as of their effective date, (iv) neither the Company nor any of its subsidiaries is in violation, or currently alleged to be in violation, in writing orany material respect, of the False Statements Act, as amended; the False Claims Act, as amended; or any other federal requirement relating to the Knowledge communication of the Companyfalse statements or submission of false claims to a Governmental Entity and (v) no termination or default notice, orally, that cure notice or show-cause notice has been issued to the Company or any of its Subsidiaries hassubsidiaries and remains unresolved, and the Company has no knowledge of any plan or proposal of any entity to issue any such notice.
(i) To the Company’s knowledge, no employee, consultant or agent of the Company or any of its subsidiaries is (or during the last five years has been) under administrative, civil or criminal investigation or indictment by any Governmental Entity with respect to the conduct of the business of the Company or any of its subsidiaries, (ii) to the Company’s knowledge, there is no pending audit or investigation of the Company, any of its subsidiaries or any of their respective officers, employees or representatives, nor, within the last five years, has there been any audit or investigation of any of them resulting in an adverse finding with respect to any alleged to haveirregularity, breached misstatement or violated in any material respect any Law, representation, certification, disclosure, clause, provision omission arising under or requirement pertaining relating to any Government Contract or Company Government Bid.
, (diii) To during the Knowledge of the Companylast five years, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject subsidiaries has made any voluntary disclosure in writing to any notice of termination for convenienceGovernmental Entity with respect to any alleged irregularity, notice of termination for default, stop work order, material cure notice misstatement or material show cause notice (excluding for this purpose ineligibility omission arising under or relating to bid on certain Contracts due a Governmental Contract or Government Bid that has led to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws any of the United Statesconsequences set forth in this Section 4.25(c) or any other material damage, penalty assessment, recoupment of payment or disallowance of cost and (iv) Section 4.25(c) of the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since Disclosure Schedule sets forth a list of the Applicable Date, no Governmental Entity has, to the Knowledge audits and investigations of the Company, threatened to issue any such notice. Since its subsidiaries and their respective officers, employees and representatives conducted during the Applicable Datelast five years, neither including who conducted the Company nor any of its Subsidiaries has received any written oraudit, to the Knowledge of purpose thereof, the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to date on which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between audit was completed and any audit results provided to the Company or any of its Subsidiariessubsidiaries.
(d) There are (i) no outstanding written claims against the Company, on the one hand, and either the applicable by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Personthird party arising under or relating to any Government Contract or Government Bid, and (ii) to the Company’s knowledge, no outstanding disputes (A) between the Company or any of its subsidiaries, on the one hand, and any Governmental Entity, on the other hand, under the Contract Disputes Act or any other Federal statute or (B) between the Company or any of its subsidiaries, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract or Company Government Bid.
(ge) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents None of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating subsidiaries was a party to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (includingprior to January 1, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure2005.
(kf) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge None of the Company, no circumstances have existed since Government Contracts are subject to termination by a Governmental Entity as a result of the Applicable Date that would have warranted such a reportconsummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Government Contracts. Section 3.25(a) of the Disclosure Schedule sets forth a true, correct and complete list of each Government Contract related to the Business that is currently in effect or which remains open to audit periods.
(a) Since Section 3.25(b) of the Applicable DateDisclosure Schedule sets forth a true, correct and complete list of each outstanding bids of the Company and its Subsidiaries have Business, including Government Bids, for which an award has not been issued prior to the date hereof.
(b) Except as set forth in Section 3.25(c) of the Disclosure Schedule, (i) Seller has complied in all material respects with the terms all applicable Laws applicable and conditions of pertaining to each Material Company Government Contract and Material Company each Government Bid as required, including related to the Business; (ii) all clauses, provisions and requirements incorporated expressly facts set forth in or acknowledged by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses Seller in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Datedisclosure statements, all representations, warranties or certifications and disclosures made by the Company and its Subsidiaries Seller with respect to any Government Contract or Company Government Bid related to the Business were currentcorrect, accurate current and complete at as of their submission date; (iii) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect, has been issued, or has been threatened, with respect to any Government Contract or Government Bid related to the time Business; (iv) no material cost incurred or invoice rendered by Seller pertaining to any Government Contract related to the Business is currently being questioned or challenged by any Governmental Authority or any other Person, has been disallowed (and Seller has no reason to believe that any cost or invoice will be disallowed) by any Governmental Authority or, to the Knowledge of disclosure Seller, has been or now is, the subject of an investigation; (v) no material amount of money due to Seller, under any Government Contract or have Government Bid related to the Business has been formally corrected withheld or otherwise finally resolved set off or been threatened to be withheld or set off nor has any claim been made to withhold or set off money; and (vi) all invoices and claims, including requests for progress payments and provisional cost payments, submitted by Seller to any Governmental Authority with a Governmental Entity), in each case, respect to any Government Contract or Government Bid related to the Business were correct and complete in all material respects, respects as of their effective submission date.
(c) Since Except as set forth in Section 3.25(d) of the Applicable Date through the date of this AgreementDisclosure Schedule, no there have not been and there currently do not exist (i) any outstanding claims or requests for equitable adjustment against Seller by any Governmental Entity nor Authority or by any prime contractor contractor, higher or subcontractor has notified the Company lower tier subcontractor, vendor or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company other third party arising under or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining relating to any Government Contract or Company Government Bid.
; (dii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its SubsidiariesSeller, on the one hand, and either any Governmental Authority, or between Seller, on the applicable Governmental Entity or one hand, and any prime contractor, higher or lower tier subcontractor, vendor or other Personthird party, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since Government Bid related to the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting Business and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (iiii) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, norfact exists which, to the Knowledge of Seller, would be reasonably likely to result in a material dispute in the Companyfuture.
(d) Except as set forth in Section 3.25(e) of the Disclosure Schedule, any neither Seller nor its respective managers, directors or officers, employees, consultants or agents is, or has been, debarred, suspended or excluded from participation in, or the award of, Contracts or doing business with any Governmental Authority. To the Knowledge of Seller, no circumstances exist that would reasonably be expected to warrant debarment or suspension of ineligibility in connection with any Governmental Contract of Government Bid.
(e) Except as set forth in Section 3.25(f) of the Company or any of its Subsidiaries (Disclosure Schedule, Seller’s cost accounting system and procurement systems and the associated entries reflected in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity Seller’s financial records with respect to the award or performance of any Government Contract, the subject of any actual or threatened Contracts and Government Bids are in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied compliance in all material respects with all security obligations incorporated in any Material Company Government Contract applicable Laws and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117regulations.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ballard Power Systems Inc.)
Government Contracts. (a) Since Except as would not reasonably be expected to have, individually or in the Applicable Dateaggregate, a Material Adverse Effect, since January 1, 2021: (i) each current Government Contract is in full force and effect, constitutes a legal, valid and binding agreement enforceable in accordance with its terms and was awarded in compliance with applicable Legal Requirements; (ii) the Company Acquired Companies and Seller and any of its Subsidiaries have complied complied, in all material respects respects, with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein Legal Requirements applicable to each Government Contract; (including, but not limited to, and as may be applicable, iii) the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures warranties made by the each Acquired Company and by Seller or any of its Subsidiaries in writing with respect to any each Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each caseaccurate, in all material respects, as of their respective effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the dates and each Acquired Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company and Seller or any of its Subsidiaries hashas made any reasonably required updates to such representations, certifications and statements; (iv) all invoices and claims for payment, reimbursement or is alleged to have, breached adjustment submitted by any Acquired Company or violated in any material respect any Law, representation, certification, disclosure, clause, provision by Seller or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any payments from any Governmental Authority pursuant to any Government Contract were current, accurate and complete in all material respects as of their respective submission dates; (v) no terminations for default or cause, cure notices, or “show cause” notices have been issued in writing to which the Company or its Subsidiaries is a party.
(f) To the Knowledge any of the CompanyAcquired Entities with respect to any Government Contract; (vi) there are no material outstanding claims, as requests for equitable adjustment, audits, or disputes relating to any Government Contract; (viii) there have been no written document requests, subpoenas, search warrants or civil investigative demands addressed to any of the date of this Agreement, there exists no outstanding asserted disputes Acquired Companies or claims for an amount in excess of $25,000,000 between the Company Seller or any of its Subsidiaries, Subsidiaries in connection with or related to any Government Contract; and (ix) there have been no written requests by a Governmental Authority for a contract price adjustment based on the one hand, and either the a claimed disallowance by an applicable Governmental Entity Authority or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or claim of defective pricing relating to any Government Contract or Company BidContract.
(gb) Since Except as would not reasonably be expected to have, individually or in the Applicable Dateaggregate, neither a Material Adverse Effect, since January 1, 2021, none of the Company Acquired Companies or, to the extent related to the Business, Seller or any of its other Affiliates nor any of its Subsidiaries has received in writing any material adverse their directors, officers, agents or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries employees has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Companydebarred, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, otherwise excluded from participation in the award of Government Contracts or subcontracts for or with by any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements)Authority.
(ic) As of the date of this AgreementExcept as would not reasonably be expected to have, (i) no costs incurred by the Company individually or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiariesaggregate, or otherwise resolved and (ii) a Material Adverse Effect, since January 1, 2021, no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Acquired Company nor any of its Subsidiaries, Seller nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is i) has conducted or has been under administrative, civil or criminal initiated any internal investigation, indictment or criminal information by any Governmental Entity with respect to made a voluntary disclosure or mandatory disclosure under the award Federal Acquisition Regulation mandatory disclosure provisions (48 C.F.R. § 52.203-13) or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries similar regulatory requirements with respect to any alleged material irregularitymisstatement, misstatement or omission omission, arising under or relating to any Government Contract, or (ii) to has received credible evidence of a violation of a federal criminal Legal Requirement involving the Knowledge fraud, conflict of interest, bribery, or gratuity provisions found in Title 18 of the CompanyU.S. Code, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any a violation of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating (31 U.S.C. §§ 3729-3733), or a significant overpayment, in connection with the award, performance, closeout, or receipt of any Government Contract.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, since January 1, 2021, (i) all material costs charged to any Government Contract have been allowable, allocable, reasonable, and reimbursable in accordance with applicable cost principles and the terms of the underlying Government Contracts; (iiiii) neither the no Acquired Company nor Seller nor any of its Subsidiaries has made submitted any written disclosure under certified cost or pricing data that was not current, accurate or complete in all material respects as of the FAR mandatory disclosure certification date in connection with any Government Contract; (iii) no Governmental Authority has, to Seller’s Knowledge, threatened to assess against any Acquired Company or payment provisions (includingSeller or any of its Subsidiaries any material penalties, but not limited tocredits, FAR 52.203-13(b)(3)) or other similar contractual offsets pursuant to any Governmental Entity, and no circumstances have existed performance-based Government Contract that contains service level arrangements or performance guarantees; (iv) none of the Acquired Companies nor Seller nor any of its Subsidiaries has sold a product or service to any customer at a price that would have warranted invoke any “most favored customer” pricing provision under any Government Contract, except as in accordance with the terms of such a disclosure.
Government Contract; and (kv) The Company each of the Acquired Companies and Seller and any of its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances has maintained adequate systems of internal controls appropriate for the operations of the Business that are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied compliance in all material respects with all security obligations incorporated in any Material Company Government Contract relevant and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge requirements of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportGovernment Contracts.
Appears in 2 contracts
Samples: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)
Government Contracts. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Since each Government Contract was legally awarded;
(b) no Government Contract or any offer, quotation, bid or proposal to sell any product or service offered by the Applicable Date, Company or any of its Subsidiaries to any Governmental Entity or prime contractor or subcontractor to a Governmental Entity (a “Government Bid”) is currently the subject of bid or award protest proceedings;
(c) the Company and each of its applicable Subsidiaries have complied are in all material respects compliance with the terms and conditions of each Material Company such Government Contract and Material Company Bid or Government Bid, as requiredapplicable, including all clauses, provisions and legal requirements incorporated expressly by reference or by operation of Law therein law therein;
(includingd) no event has occurred which would result in a breach or violation of any applicable legal requirement, but not limited torepresentation, and as may be applicablecertification, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”)disclosure, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in clause, provision or requirement pertaining to any Material Company such Government Contract or Material Company Government Bid).;
(be) Since neither the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no applicable Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, applicable Subsidiaries that the Company or any of its Subsidiaries it has, or is alleged to have, breached or violated in any material respect any Lawapplicable legal requirement, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Government Bid.;
(df) To the Knowledge none of the Company, neither the Company nor or any of its applicable Subsidiaries has, since the Applicable Date, received has made or is subject been required to make any mandatory or voluntary disclosure to any notice Governmental Entity with respect to any alleged irregularity, misstatement, omission, fraud or price mischarging, or other violation of termination for convenienceapplicable legal requirement, arising under or relating to a Government Contract or Government Bid;
(g) none of the Company or any of its applicable Subsidiaries has received any notice of termination for default, stop work ordercure notice, material cure notice or material letter of concern, show cause notice, or other similar notice pertaining to the performance of a Government Contract;
(excluding h) all pricing discounts under Government Contracts have been properly reported to and credited to the customer and all invoices and claims for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementspayment submitted in connection with any Government Contract were current, accurate and complete as of their submission date;
(i) (or, in the case of Contracts governed by Laws other than the state or federal Laws each of the United StatesCompany and its applicable Subsidiaries has established and maintained adequate internal controls for compliance with its Government Contracts; and
(j) None of the Company or any of its applicable Subsidiaries, the functional equivalents thereofor any of their respective directors, if anyofficers or employees, is, or has been, (i) pertaining to any Material Company Government Contractdebarred, andsuspended or excluded, since the Applicable Date, no Governmental Entity has, or to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment debarment, suspension or suspensionexclusion, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or doing business with any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company under audit, indictment or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any allegations of fraud, false claims or overpayments or actual or threatened in writing, “whistleblower” or “qui tam” lawsuittam lawsuits, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries in each case with respect to any alleged material irregularity, misstatement act or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Government Contracts. (a) Since With respect to each Government Contract and Government Bid: (i) each of the Applicable DateCompany and its Subsidiaries has complied in all material respects with applicable Law; (ii) the representations, warranties and certifications made therein by the Company or its Subsidiaries were true and correct in all material respects as of their effective date; (iii) the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Government Bid; (iv) neither the Company Bid as requirednor any of its Subsidiaries has received any written adverse or negative government past performance evaluation or rating for the past three (3) years; (v) there is no suspension, including all clausesstop work order, provisions cure notice or show cause notice in effect for such Government Contract nor has the Company received any such written notice; and requirements incorporated expressly by reference or by operation of Law therein (includingvi) the Company and its Subsidiaries have implemented policies, but not limited toprocedures, and as may be applicable, the Truthful Cost training programs reasonably designed to ensure compliance with clauses (i) and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”iii), Department in each case if appropriate in the light of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company current Government Contract or Material Company Bid)Contracts.
(b) Since Except as set forth in Section 3.20(b) of the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orDisclosure Letter, to the Knowledge of the Company, orallythere is no: (i) civil fraud or criminal investigation, indictment, writ of information or audit of the Company or any of its Subsidiaries by any Governmental Authority with respect to any alleged or potential violation of applicable Law regarding any Government Contract or Government Bid; or (ii) contracting officer’s decision or legal proceeding by which a Governmental Authority claims that the Company or any of its Subsidiaries hasis liable to such Governmental Authority, or is termination of a Government Contract by a Governmental Authority, in either case, in respect of or for any breach or violation of, or default under, any Government Contract, or claim or request for equitable adjustment by the Company or any of its Subsidiaries against a Governmental Authority in an amount in excess of $1,000,000.
(c) Except as set forth in Section 3.20(c) of the Disclosure Letter, neither the Company nor any of its Subsidiaries has made a voluntary disclosure or other notification to any Governmental Authority related to any suspected, alleged to have, breached or violated in any material respect any possible violation of a contract requirement or applicable Law, representationany apparent or alleged irregularity, certification, disclosure, clause, provision misstatement or requirement pertaining omission arising under or relating to any a Government Contract or Company Bidotherwise. To the Knowledge of the Company, there are no facts that require such a disclosure.
(d) To the Knowledge of the Company, there are no material claims or disputes by or between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority or any prime contractor, subcontractor or vendor therefor, on the other hand, relating to any Government Contract.
(e) To the Knowledge of the Company, (i) neither the Company nor any of its Subsidiaries has, since the Applicable Date, received has undergone or is subject currently undergoing any internal or external audit, review, inspection, investigation, survey or examination of records relating to any notice of termination for convenienceGovernment Contracts, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, other than in the case ordinary course of Contracts governed by Laws other than the state or federal Laws of the United Statesbusiness, the functional equivalents thereofand (ii) since January 1, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date2014, neither the Company nor any of its Subsidiaries has received written notice of, or undergone any written orinvestigation or review relating to, any noncompliance, misconduct, violation or breach regarding any Government Contract, other than in the ordinary course of business.
(f) The Company and its Subsidiaries and their respective employees possess all security clearances necessary to perform the Government Contracts, and all such security clearances are valid and in force and effect. To the Knowledge of the Company, there are no facts or circumstances that would reasonably be expected to result in the suspension or termination of such security clearances or that would reasonably be expected to render the Company, any of its Subsidiaries or their respective employees ineligible for such security clearances in the future. The Company and its Subsidiaries are in compliance in all material respects with all security measures required by Government Contracts.
(g) Neither the Company nor any of its Subsidiaries nor any of their respective directors, executives or employees, nor, to the Knowledge of the Company, oral notice any of their respective representatives or agents, in connection with the performance of the duties for, or on behalf of, the Company or any of its Subsidiaries (i) is debarred or suspended, or, since January 1, 2013, has been proposed for suspension or debarment from bidding on any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel Contract, declared nonresponsible or ineligible, or otherwise adversely modify excluded from participation in the award of any Government Contract; (ii) has made any payments or used any funds to influence any transaction in violation in any material respect of applicable Law; (iii) has used any corporate or other funds or given anything of value for unlawful gratuities, contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds, in each case in violation in any material respect of any applicable Law; (iv) has made any bribe, unlawful rebate, unlawful payoff, influence payment, kickback or other unlawful payment of any nature; or (v) violated any applicable export control, money laundering or anti−terrorism Law in any material respect, nor have any of them otherwise taken any action which would cause the Company or any of its relationship with Subsidiaries to be in violation in any material respect of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable Law of similar effect.
(h) As of the date hereof, neither the Company nor any of its Subsidiaries has any outstanding Government Bid that, to the Knowledge of the Company, was, as of the date such Government Bid was made, reasonably expected to result in a loss to the Company or its Subsidiaries if accepted or awarded. Neither the Company nor any of its Subsidiaries is a party to any Government Contract that, to the Knowledge of the Company, was, as of the date entered into by the Company or any of its Subsidiaries, reasonably expected to result in a loss to the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(fi) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising all Intellectual Property delivered under or relating to any a Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been properly and sufficiently marked and protected so that no more than the subject minimum rights or licenses required under applicable regulations and the terms of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Companysuch Government Contract, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has if any, have been debarred or suspended, or to provided. To the Knowledge of the Company proposed for a finding of debarment Company, all personal property, equipment or suspensionfixtures supplied, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreementloaned, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, bailed or otherwise resolved and (ii) no payment due furnished to the Company or any of its Subsidiaries pertaining to by or on behalf of any Material Company Government Contract Governmental Authority has been withheld properly accounted for and has been, or set offwill be, nor has any claim been made to withhold returned or set off money, otherwise disposed of in each case, in an amount in excess of $10,000,000.
(j) Since accordance with the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any instructions of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any relevant Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureAuthority.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 2 contracts
Samples: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Telecommunication Systems Inc /Fa/)
Government Contracts. (a) Since None of the Applicable DateTarget Companies or Target Subsidiaries is, or during the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid last three years has been (except as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”to routine security investigations), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract under administrative, civil or Material Company Bid).
(b) Since the Applicable Datecriminal indictment, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing information or, to the Knowledge of the CompanyParent and Sellers, orallyinvestigation by any Governmental Entity, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of Parent and the Company, threatened to issue Sellers has any such notice. Since the Applicable Dateindictment, neither the Company nor any of its Subsidiaries has received any written orinformation or investigation been threatened, (ii) to the Knowledge of Parent and the CompanySellers, oral none of the Target Companies or Target Subsidiaries or any Employee of the Business has received notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject form of a written finding of non-responsibility pending or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director threatened audit or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information investigation by any Governmental Entity with respect to of the award or performance of any Government ContractTarget Companies, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, Target Subsidiaries or any audit or, to the Knowledge Employee of the Company, investigation of the Company or any of its Subsidiaries Business with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract or Government Bid, and (iii) neither during the Company last three (3) years, none of the Target Companies or Target Subsidiaries has made a voluntary disclosure with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract with or a Government Bid by any of the Target Companies or Target Subsidiaries, other than routine inquiries, audits and reconciliations that, in each case, would not reasonably be expected to have a Material Adverse Effect. To the Knowledge of Parent and the Sellers, none of the Target Companies or Target Subsidiaries nor any of its Subsidiaries the Employees of the Business has made submitted any written disclosure under the FAR mandatory disclosure inaccurate, untruthful, or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries misleading information in connection with any Material Company voluntary disclosure to any Governmental Entity or any cost or pricing data, certification, bid, proposal, application, report, claim, or any other information relating to a Government Contract and made available to Parent or its outside legal counsel prior to the date U.S. Government or any other Governmental Entity that has led or is expected to lead to any of this Agreement the consequences set forth in clause (except to i) or (ii) of the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security immediately preceding sentence or similar Law)any other material damage, penalty assessment, recoupment of payment, disallowance of cost, termination for default and/or suspension and debarment.
(mb) To the extent applicable, There are (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andno pending or, to the Knowledge of Parent and the CompanySellers, threatened claims, appeals, “Requests for Equitable Adjustments”, or protests against any Target Company or Target Subsidiary by a Governmental Entity or by any prime contractor, subcontractor or vendor arising under any Government Contract with or Government Bid by any Target Company or any Target Subsidiary and (ii) no circumstances have existed since disputes between any Target Company or Target Subsidiary and a U.S. Governmental Entity under the Applicable Date Contract Disputes Act or any other federal Law or between any Target Company or Target Subsidiary and any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract with or Government Bid by any Target Company or Target Subsidiary, except any such claim or dispute that would not reasonably be expected to have warranted a Material Adverse Effect.
(c) None of the Target Companies or Target Subsidiaries nor any Employee of the Business is (or during the last three years has been) suspended or debarred from doing business with a Governmental Entity or a non-U.S. Governmental Entity, nor to the Knowledge of Parent and the Sellers has any such suspension or debarment been threatened, proposed, or commenced.
(d) No Government Contract held by a reportTarget Company or Target Subsidiary has been totally or partially terminated for default or for the convenience of the Government.
(e) There exist no assignment of claims with respect to a Target Company’s or any Target Subsidiary’s Government Contracts, whether pursuant to the Assignment of Claims Act, 41 U.S.C. 15, or otherwise.
(f) Neither the Target Companies nor any Target Subsidiary has been notified of any warranty claims relating to any Government Contract.
(g) No misstatement contained in schedules of U.S. Government-furnished equipment provided to any Governmental Entity under any Government Contract with any Target Company or Target Subsidiary is reasonably expected to have a Material Adverse Effect.
(h) The rates and rate schedules submitted to Governmental Entities with respect to the Government Contracts with any Target Company or Target Subsidiary have been closed for all years prior to 2002.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Raytheon Co/), Stock Purchase Agreement (Hawker Beechcraft Quality Support Co)
Government Contracts. With respect to any Contract with a Governmental Authority (each, a “Government Contract”):
(a) Since the Applicable Dateeach Fluids Entity has maintained necessary and adequate performance qualifications, the Company certifications, approvals, policies and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect controls designed to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each caseensure, in all material respects, as of their effective date.and has been in, material compliance with contract requirements, applicable Laws pertaining to Government Contracts and to any bid or proposal, grant, cooperative agreement, or any subcontract or lower-tier agreement pertaining to an actual or potential Government Contract;
(b) representations and certifications applicable to such Government Contracts or to bids or proposals for prospective Government Contracts were accurate in all material respects when made;
(c) Since invoices submitted were accurate in all material respects and any required adjustments have been reported and credited to the Applicable Date through customer, in accordance with the date terms of this Agreementsuch Government Contract, in all material respects;
(d) no Fluids Entity has made or submitted any express or implied false or fraudulent claim or statement to any Governmental Authority or any higher-tier contractor in connection with a Government Contract or with respect to the issuance or approval of any Government Contract or any payment or performance obligation thereunder;
(e) no Government Contract was awarded on the basis of any “Small Business” or preferred bidder designation (and none of the Fluids Entities’ expected sales revenue will be diminished as a result of any loss of such status in connection with Transactions) or provides for payment on the basis of incurred costs or was based on a disclosure of internal costs or the pricing offered to other customers or a pricing guarantee, or includes a duty to accumulate, allocate or report costs of performance, or requires or involves access to classified information or facilities, or requires customization of software for a Governmental Authority or customer or provides software rights to the Fluids Entities’ Intellectual Property (other than Government Contracts under which the customer is granted a standard license to commercial computer software that does not differ from the Fluids Entities’ standard commercial licenses relating to the use of such software and Intellectual Property);
(f) since the Lookback Date, no Governmental Fluids Entity nor any prime contractor has asserted or subcontractor has notified the Company received notice of an alleged material violation or any material breach of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosuredisclosure obligation, or contract term, condition, clause, provision or requirement pertaining specification with any respect to a Government Contract, nor any notice of breach or for cure, show cause, deficiency, default, termination, inaccurate certification, improper billing, false or reckless claim, false statement, fraud, kickback or violation of Law arising under or related to a Government Contract or Company Bid.to bids or proposals for prospective Government Contracts, nor are there any related pending claims, disputes, litigation or administrative or judicial proceedings, arbitrations or mediations;
(dg) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Lookback Date, no Fluids Entity nor their respective officers, directors, principals, owners, managers, or employees, acting on behalf of a Fluids Entity, have been suspended, debarred or excluded by a Governmental Entity has, Authority (nor to the Knowledge of Seller, been threatened in writing with suspension, debarment or exclusion) nor been in material violation of any applicable restriction on conflict of interest, lobbying, political activity or the Company, threatened offering or giving of anything of value to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company a Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.Official;
(eh) Since since the Applicable Lookback Date, no material written or, to the Knowledge Fluids Entity has received or provided notice of the Company, oral claim (other than any such claim that has been formally corrected audit or otherwise finally resolved with the applicable investigation by a Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries Authority in connection with any a Government Contract and is not subject to which the Company any internal investigation or its Subsidiaries is a party.
(f) To the Knowledge of the Companymandatory or voluntary disclosure, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or material dispute relating to any Government Contract or Company Bid.
(g) Since the Applicable Dateany bid or proposal, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Dategrant, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspendedcooperative agreement, or any subcontract or lower-tier agreement pertaining to the Knowledge of the Company proposed for a finding of debarment an actual or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).potential Government Contract;
(i) As of the date of this Agreementno Fluids Entity has any outstanding agreements, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowanceContracts, or deemed finally disallowed, in each case, in writing by commitments which require it to obtain or maintain a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, United States government security clearance or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.a foreign government security clearance; and
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or Fluids Entity has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations cost principles or cost accounting standards as have been applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with Government Contracts, grants, or cooperative agreements at any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)tier.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since Neither of MMG or the Applicable DateSubsidiary is currently performing material work for a Government Entity without the benefit of a Government Contract or contractual authorization or funding from such Government Entity.
(b) Except for any technical non-compliance as to which Seller has no Knowledge and that would not have any material and adverse effect on MMG or the Subsidiary with respect to any Government Contract, each of MMG and the Company and its Subsidiaries have Subsidiary has complied in all material respects with the terms all statutory and conditions of each Material Company Government Contract and Material Company Bid as requiredregulatory requirements, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicablethe Armed Services Procurement Act, the Truthful Cost Federal Procurement and Pricing Data Administrative Services Act; , the Service Contract Act; , the Buy America Act; Xxxx-XxXxxxx Amendment, the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department the FAR Cost Principles and the Cost Accounting Standards, where and as applicable to each of Defense FAR Supplement (“DFARS”) MMG’s or the Subsidiary’s Government Contracts and agency FAR supplement clauses each of MMG’s and the Subsidiary’s quotations, bids and proposals for the Subsidiary’s Government Contracts, and there are no actual or alleged violations or breaches of any statute, regulation, representation, certification, disclosure obligation, or contract term with respect thereto. All material reports, documents and notices required to be filed, maintained or furnished with or to any Government Entity by either MMG or the Subsidiary have been so filed, maintained or furnished, and all such reports, documents and notices were complete and correct in any Material Company all material respects on the date filed. All representations and certifications made by each of MMG and the Subsidiary with respect to a Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either MMG and the applicable Governmental Entity or Subsidiary have complied with such representations and certifications in all material respects. Neither the U.S. Government nor any prime contractor, subcontractor, vendor or other Personthird party has notified either MMG or the Subsidiary in writing that such Person has breached or violated any Law pertaining to such Government Contract or Government Bid. Neither MMG nor the Subsidiary has received written notice that money due to either MMG or the Subsidiary pertaining to any such Government Contract or Government Bid has been withheld or set off other than in accordance with the withholding provisions of any such Government Contract or Government Bid.
(c) To the Knowledge of the Seller, on (i) there is no pending audit or investigation of either MMG or the other handSubsidiary or any of their respective Representatives or Affiliates, including, without limitation, incurred cost audits and accounting system reviews, and (ii) within the last five (5) years, there has not been any audit or investigation of either MMG or the Subsidiary, or any of their respective Representatives or Affiliates that, in the case of subsection (i) or (ii), resulted in any adverse finding with respect to any alleged irregularity arising under or relating to any Government Contract or Company Government Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a resulted in any adverse material finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award any alleged misstatement or performance of omission arising under or relating to any Government ContractContract or Government Bid. Except as set forth on Schedule 4.23(c) to the Disclosure Schedule, no material cost incurred by either MMG or the subject of Subsidiary pertaining to a Government Contract or Government Bid has been disallowed by any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit Government Entity or, to the Knowledge of Seller, is the Companysubject of an investigation and, investigation to the Knowledge of Seller, there is no basis upon which any such incurred material cost will be disallowed in the Company or future by any Government Entity. During the last five (5) years, neither MMG nor the Subsidiary has made any voluntary disclosure under a formal voluntary disclosure program of its Subsidiaries a Government Entity in an effort to mitigate potential liability to any Government Entity with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current Contract or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureBid.
(kd) The Company and its Subsidiaries and their respective employees possess MMG or the Subsidiary possesses all the facility and personnel security clearances reasonably necessary to perform all Material Company Government Contracts, conduct the Business. MMG and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries Subsidiary have complied in all material respects with all security obligations incorporated in any Material Company applicable requirements under each of the Government Contract and all national security obligations applicable to the Company and its Subsidiaries Contracts relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisionsand, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior as set forth on Schedule 4.23(d) to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andDisclosure Schedule, to the Knowledge of the CompanySeller, no circumstances have existed since facts currently exist that are reasonably likely to give rise to the Applicable Date revocation of the security clearances.
(e) Since January 1, 2005, except as described in Schedule 4.23(e) to the Disclosure Schedule, (i) neither MMG nor the Subsidiary has received any show cause, cure, deficiency, default or similar written notice relating to any of the Government Contracts that would have warranted as of the date hereof is unresolved, (ii) none of the Government Contracts has been terminated for default, (iii) to the Knowledge of the Seller, no facts exist that are reasonably likely to give rise to a termination for default of any of the Government Contracts or a breach of the Xxxx-XxXxxxx Amendments cost-monitoring thresholds, and (iv) neither MMG nor the Subsidiary has received any written notice terminating any of the Subsidiary’s Government Contracts for convenience or indicating an intent to terminate any of such Government Contracts for convenience. Except as described in Schedule 4.23(e) to the Disclosure Schedule, neither MMG nor the Subsidiary has received written notice that there are outstanding claims or disputes against MMG or the Subsidiary relating to a Government Contract and involving any Government Entity, any prime contractor, or any third party, which claim or dispute is material to the applicable Government Contract. To the Knowledge of the Seller, except as described in Schedule 4.23(e) to the Disclosure Schedule, there exist no facts or allegations that could give rise to such a reportclaim or dispute in the future. Neither MMG nor the Subsidiary has been found to be not presently responsible in the last three years with respect to any current or past Government Bid. Except as described in Schedule 4.23(e) to the Disclosure Schedule, neither MMG, the Subsidiary nor their respective Representatives has been and is not now suspended, debarred, or proposed for suspension or debarment from government contracting, and to the Seller’s Knowledge, no facts exist that could cause or give rise to such suspension or debarment.
(f) To the Knowledge of Seller, except as to evaluations made by a Government Entity in connection with the Contract relating to the LCS that were also provided to LMC by a Government Entity, there are no negative government past performance evaluations or ratings in connection with the Subsidiary’s Government Contracts that could reasonably be expected to materially and adversely affect the evaluation of MMG’s or the Subsidiary’s (or either of their successors) current Government Bids or bids or proposals for future Government Contracts.
(g) To the Knowledge of Seller, no facts exist that could reasonably give rise to a claim for price adjustment under the False Claims Act, the Truth in Negotiations Act or to any other request for a reduction in the price of any of the Government Contracts.
(h) To the Knowledge of Seller, all Government Contracts have been awarded to MMG or the Subsidiary, and all Government Bids have been submitted by MMG or the Subsidiary, under a full and open procurement process without preferential treatment of any kind. There are no Government Contracts or Government Bids to which MMG or the Subsidiary is a party or bound premised on MMG or the Subsidiary having 8(a) status, small business status, small disadvantaged business status, protégé status or other preferential status.
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateThere are no disputes pending or, the Company and its Subsidiaries have complied in all material respects to Parent’s knowledge, threatened with the terms and conditions of each Material Company respect to any Parent Government Contract and except as would not reasonably be expected to have, either individually or in the aggregate, a Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid)Adverse Effect on Parent.
(b) Since Except as would not reasonably be expected to have, either individually or in the Applicable Dateaggregate, all representationsa Material Adverse Effect on Parent, certifications and disclosures made by the Company with respect to each Parent Government Contract, since January 1, 2007: (i) each of Parent and its Subsidiaries has complied with respect all laws pertaining to such Parent Government Contract; (ii) each of Parent and its Subsidiaries has complied with all requirements of governmental statutes, rules, regulations or, orders pertaining to such Parent Government Contract; (iii) each representation and certification directly or indirectly made to any Governmental Entity in a formal certification executed by Parent or its Subsidiaries pertaining to such Parent Government Contract or Company Bid were current, accurate was true and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their its effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any and Parent and each of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, has complied with each such representation and certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
; and (div) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company Parent nor any of its Subsidiaries has submitted any non-current, inaccurate or incomplete cost or pricing data to any Governmental Entity or higher tier prime contractor in connection with such Parent Government Contract. With respect to each Parent Government Contract, (x) no suspension, stop work order, cure notice or show cause notice in effect with respect to any such Parent Government Contract has been issued and remains unresolved nor, to Parent’s knowledge, has any Governmental Entity threatened to issue one and (y) neither Parent nor its Subsidiaries has received any written notice of the intention of any other party to a Parent Government Contract to terminate for default, convenience or otherwise any Parent Government Contract nor, to Parent’s knowledge, is any such party threatening to do so and (z) to the knowledge of Parent, neither Parent nor its Subsidiaries is aware of any organizational conflicts of interest that might arise as a result of the Merger or the other transactions contemplated by this Agreement.
(c) With respect to the Parent Government Contracts (i) to the knowledge of Parent, there is no pending administrative, civil fraud or criminal investigation or indictment of Parent, any of its Subsidiaries or any director, officer or employee of Parent or any of its Subsidiaries by any Governmental Entity with respect to any alleged or potential violation of law regarding any Parent Government Contract; (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of the Parent, any of their respective directors, officers or employees is suspended or debarred from doing business with the U.S. Government or declared nonresponsible or ineligible for U.S. Government contracting and there is no pending suspension, debarment or equivalent proceeding against Parent or any of its Subsidiaries or, to the Knowledge knowledge of the CompanyParent, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel director, officer or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge employee of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company Parent or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting ; and (iiiii) neither there is no (A) outstanding written request by the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed U.S. Government for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid material contract price adjustment based on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred a claimed disallowance by the Company Defense Contract Audit Agency or claim of defective pricing; or (B) unresolved material claim or equitable adjustment by Parent or any of its Subsidiaries pertaining to any individual Company Government Contract have been questionedagainst the U.S. Government. Since January 1, proposed for disallowance2007, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company Parent nor any of its Subsidiaries, nor any of the respective Parent’s or its Subsidiaries’ directors, officers or employeesemployees has hired any law firm or outside counsel to conduct any internal investigation, nor, or made a voluntary disclosure to the Knowledge of the CompanyU.S. Government, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Parent Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureParent Bid.
(kd) The Company Parent and its Subsidiaries and their respective employees possess all facility and personnel government security clearances necessary to perform all Material Company the Parent Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(le) The Company and its Subsidiaries are not currently limitedFor the purposes of this Agreement, prohibited “Parent Government Contract” means any prime contract, subcontract, teaming agreement or otherwise restricted from performing arrangement, joint venture, basic ordering agreement, pricing agreement, letter contract or bidding for any material work other similar arrangement or material future business opportunities due to “organizational conflicts commitment of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company any kind between Parent or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012U.S. Government, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since any prime contractor to the Applicable DateU.S. Government in its capacity as a prime contractor or (iii) any subcontractor with respect to any contract of a type described in clauses (i) or (ii) above. For the purposes of this Agreement, the Company and “Parent Bid” means any quotation, bid or proposal by Parent or any of its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) that, if accepted or otherwise andawarded, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such result in a reportParent Government Contract (other than a Parent Bid).
Appears in 1 contract
Samples: Merger Agreement (Triumph Group Inc)
Government Contracts. (ai) Since the Applicable Date, With respect to each Government Contract or outstanding Bid: (A) the Company and its Subsidiaries have each Joint Venture, as applicable, has complied in all material respects with the all material terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company such Government Contract or Material Bid; (B) the Company and each Joint Venture, to the extent applicable, has complied in all material respects with all applicable requirements of statute, rule, regulation, order or agreement with the applicable Governmental Authority pertaining to such Government Contract or Bid).
; (bC) Since as of the Applicable Datedate hereof, all representations, certifications and disclosures made by warranties executed, acknowledged or set forth in or pertaining to such Government Contract or Bid were accurate in all material respects as of their effective date and the Company and its Subsidiaries each Joint Venture, to the extent applicable, has fully complied with respect to any Government Contract or Company Bid were currentall such representations, accurate certifications and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, warranties in all material respects; (D) neither the applicable Governmental Authority, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor any other Person has notified the Company or any of its SubsidiariesCompany, in writing or, to the Knowledge of the Company, orallywriting, that the Company or any of its Subsidiaries hasJoint Venture, or is alleged to havethe extent applicable, has breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement Law pertaining to any such Government Contract or Company Bid.
Bid that is, individually or in the aggregate, reasonably likely to result in material liability or expense; (dE) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no material termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice has been issued and not resolved or cured; (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsF) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs cost incurred by the Company or any of its Subsidiaries pertaining the Joint Ventures, to any individual Company Government Contract the extent applicable, has been questioned in writing or disallowed, other than those which have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved resolved; and (iiG) no payment money due to the Company or any of its Subsidiaries the Joint Ventures, to the extent applicable, pertaining to any Material Company such Government Contract has been withheld or set off, offset nor has any claim been made to withhold or set off moneyoffset money (other than retainages as provided for in the applicable Government Contract).
(ii) Section 3.15(a)(ii) of the Seller Disclosure lists, in each caseas of April 30, in an amount 2007, (i) all Executory Government Contracts with a total contract award value in excess of $10,000,0001,000,000, and (ii) with respect to each accurately sets forth (A) the Contract name; (B) the award date; (C) the customer; (D) the Contract end date; (E) the Contract cost ceiling, if applicable, and (F) the funded backlog (i.e., total appropriated funds obligated to such Executory Government Contract minus expenditures under such Contract).
(j) Since the Applicable Date, (i) To the Seller’s Knowledge, neither the Company nor any of its Subsidiariesor the Joint Ventures, nor any of the respective directors, Company’s directors or officers is/are (or employees, nor, to for the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been last three years has/have been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries (other than routine audits) with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government ContractContract or Bid that would, individually or in the aggregate, reasonably be expected to result in material liability or expense; (ii) to within the Knowledge of the Companypast three years, there is no current or outstanding civil investigative demand or subpoena issued to neither the Company or any of its Subsidiaries, nor any of its the Joint Ventures have entered into any consent order or their respective directorsadministrative agreement, officers or employees (in each case in their capacity as such), under the civil undertaken any internal investigation or criminal False Claims Act audit relating directly or indirectly to any Government Contract and or Bid that has had or would, individually or in the aggregate, reasonably be likely to result in, material liability or expense; (iii) neither the Company nor any of its Subsidiaries has the Joint Ventures nor any of the Company’s directors or officers has/have in the last three years made a Voluntary Disclosure pursuant to the Department of Defense Fraud Voluntary Disclosure Program or International Traffic in Arms Regulation with respect to any written disclosure alleged irregularity, misstatement or omission arising under the FAR mandatory disclosure or payment provisions relating to any Government Contract or Bid; and (including, but not limited to, FAR 52.203-13(b)(3)iv) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable DateSeller’s Knowledge, the Company and its Subsidiaries the Joint Ventures have complied not taken any action or failed to take any action that could reasonably be expected to give rise to liability under the Civil or Criminal False Claims Act, the Truth in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationNegotiations Act, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117common law claims based on misrepresentation or unjust enrichment.
(lc) The Company and its Subsidiaries are not currently limitedNeither the applicable Governmental Authority nor any prime contractor, prohibited subcontractor or otherwise restricted from performing or bidding for vendor has asserted any material work claim or initiated any dispute proceeding against the Company or any Joint Venture with respect to any material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company claim concerning any Government Contract terms or provisionsBid. As of the date hereof, except pursuant to existing organizational conflicts of interest mitigation plans submitted by neither the Company nor any Joint Venture has asserted any material claim or initiated any dispute proceedings, directly or indirectly, against the applicable Governmental Authority or any prime contractor, subcontractor or vendor concerning (in each case) any Government Contract or Bid.
(d) Neither the Company or any of its Subsidiaries in connection Joint Ventures nor any of their respective directors or officers is (or at any time during the last three years has been) suspended or debarred from doing business with any Material Company Government Contract and made available to Parent the applicable Governmental Authority, or its outside legal counsel prior is, to the date Seller’s Knowledge, currently proposed for suspension or debarment or has been determined to be nonresponsible or ineligible for U.S. Government contracting. There are no matters pending that are reasonably likely to lead to the institution of this Agreement suspension or debarment proceedings against the Company or any of its Joint Ventures. Neither the Company nor any of its Joint Ventures has, within the past three years, been terminated for default under any Government Contract.
(except e) The Company, the Joint Venture and, to the extent making such Material required, each Company employee performing services related to a Government Contract available possesses all necessary security clearances for the execution of its obligations under any Government Contract currently being performed. The Company and the Joint Ventures are in compliance in all material respects with applicable agency security requirements, as appropriate, and have in place proper procedures, practices and records to Parent maintain security clearances necessary to perform their respective Government Contracts, and to Seller’s Knowledge, there is prohibited no existing information, fact or circumstance that would reasonably be expected to cause the Company or its employees or the Joint Venture to lose any security clearances. To Seller’s Knowledge, each employee of the Company performing services related to a Government Contract possesses all of the required credentials (e.g., education and experience) specified in or required by such Government Contract. The Company and the Joint Ventures are in compliance in all material respects with applicable national security or similar Law)International Traffic in Arms Regulations, Export Administration Regulations, and Contract provisions governing the transfer of covered technologies to foreign nationals.
(mf) To The Company’s cost accounting system is in compliance with applicable regulations (including the extent applicable, (iFederal Acquisition Regulation) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and has not been determined by any Governmental Authority to be in violation of the requirements of the Federal Cost Accounting Standards or other applicable cost accounting regulations in any material respect. The Company has reached agreement with the cognizant Government representatives approving and “closing” all indirect costs charged to Government Contracts for the year 2004 and all prior years. All indirect and general and administrative expense rates are being billed in a manner consistent in all material respects with the applicable Government Contract and any applicable statutes, rules or regulations. The Company is not subject to any assignment of proceeds (iiother than any assignments that will have been terminated as of the Closing Date) since pursuant to the Applicable DateAnti-Assignment Act.
(g) To Seller’s Knowledge, all outstanding Bids are capable of performance by the Company and its Subsidiaries have not submitted Joint Ventures, as applicable, in accordance with the terms and conditions of such Bid or the Government Contract to which the Bid applies without incurring a loss (calculated in accordance with the Company’s accounting principles consistently applied). To Seller’s Knowledge, no Executory Government Contract has incurred or is currently projected to incur losses or cost overruns in an amount exceeding $50,000.
(i) Except as set forth in Section 3.15(h)(i) of the Seller Disclosure Schedule, neither the Company nor any cyber incident report of the Joint Ventures holds a Government Contract premised on “8(a)” status, small disadvantaged business status, protégé status, HUBZONE status, or other similar socioeconomic status (other than “small business concern” status) pursuant to DFARS 252.204-7012(cFederal Acquisition Regulation Part 19. Section 3.15(h)(ii) of the Seller Disclosure Schedule lists all Government Contracts or otherwise and, Bids premised on the small business status of the Company or any Joint Venture to which the Company is a party. Notwithstanding anything to the Knowledge contrary above, the Seller and Purchaser agree that Seller shall be liable for a breach of any of the Company, no circumstances have existed since representations set forth in this Section 3.15 with respect to a Joint Venture only to the Applicable Date that would have warranted extent the Company incurs a Liability as a result of such a reportbreach.
Appears in 1 contract
Government Contracts. (a) Since With respect to each Government Contract: (i) the Applicable Date, Seller and the Company and its Subsidiaries Business have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredContract, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of any Law therein therein, (includingii) the Seller and the Business have complied in all material respects with the requirements of applicable Law pertaining to such Government Contract, but not limited to(iii) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were correct and complete as of their effective date, and as may be applicable, the Truthful Cost Seller and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting StandardsBusiness have complied in all material respects with all such representations and certifications; and applicable (iv) in the past six years there has been no termination for convenience or termination for default, and no cure notice or show cause notice pertaining to any material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid)is in effect.
(b) Since In the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Datesix years, (i) neither the Company Seller nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its SubsidiariesBusiness, nor any “Principal” of the respective directors, officers Seller or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries Business (as defined in each case in their capacity as such), is or Federal Acquisition Regulation 52.209-5) has been under administrative, civil or criminal investigation, suspension or debarment proceeding, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government ContractContract (other than routine Governmental Authority audits, in which no such irregularities, misstatements or omissions were expressly identified), and (ii) neither the Seller nor the Business has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Authority, with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract.
(c) In the Knowledge of past six years, neither the Company, there is no current or outstanding civil investigative demand or subpoena issued to Seller nor the Company or any of its SubsidiariesBusiness, nor any “Principal” of its the Seller or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” Business (as defined in FAR Subpart 9.5Federal Acquisition Regulation 52.209-5) has been suspended or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection debarred from doing business with any Material Company Government Contract and made available to Parent Governmental Authority or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security is, or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Dateat any time has been, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204subject of a finding of non-7012(c) responsibility or otherwise and, to ineligibility or other similar finding for government contracting. No circumstances exist that would warrant the Knowledge institution of suspension or debarment proceedings or the finding of non-responsibility or ineligibility on the part of the Company, no circumstances have existed since Seller or the Applicable Date that would have warranted such a reportBusiness as of the Effective Date.
Appears in 1 contract
Government Contracts. (a) Since There is no suit pending as to which notice has been provided to the Applicable DateCompany or its Subsidiary or, to the best knowledge of the Company or the Principal Holders, investigation pending or threatened against the Company or its Subsidiary asserting or alleging the commission of criminal acts or bribery by either the Company or its Subsidiary with respect to any Contract between the Company or its Subsidiary and the United States Government or a department or agency thereof (a "GOVERNMENT CONTRACT"). Neither the Company nor its Subsidiary has been debarred or suspended from participation in the award of contracts with the U.S. government or any agency or department thereof (it being understood that debarment and suspension does not include ineligibility to bid for certain contracts due to generally applicable bidding requirements). The Company and its Subsidiary are, and at times have been, in compliance with all applicable laws, rules and regulations relating to any Government Contract and neither the Company nor any Subsidiary has received written notice of any kind from the United States Government or any agency or department thereof alleging any violation, or notifying the Company or any Subsidiary of any investigation of a possible violation, of any applicable law, rule, or regulation by the Company or its Subsidiary or any act for which the Company or its Subsidiary could be debarred or suspended from contracting with any agency of any government, or prohibiting or seeking to prohibit the Company or its Subsidiary from conducting, or restricting or seeking to restrict the Company's or its Subsidiary' ability to conduct, all or any part of its business or operations or from contracting with any government. No payment has been made by the Company or its Subsidiary, or, to the best knowledge of the Company, by any Person acting on its or their behalf, to any Person in connection with any Government Contract in violation of applicable procurement laws or regulations or in violation of (or requiring disclosure pursuant to) the Foreign Corrupt Practices Act. The cost accounting and procurement systems maintained by the Company and its Subsidiaries Subsidiary with respect to Government Contracts are in compliance with all applicable U.S. government laws and regulations.
(b) With respect to each Government Contract (i) the Company and its Subsidiary have complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredContract, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein; (includingii) all representations and certifications executed, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications were complete and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date, and the Company and each Subsidiary has complied in all respects with all such representations and certifications; (iv) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract.
(c) Since the Applicable Date through the date of this AgreementExcept as set forth on SCHEDULE 4.12, no Governmental Entity nor any prime contractor Contract with a customer has accrued or subcontractor has notified is expected by the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated result in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidlosses.
(d) To the Knowledge of SCHEDULE 4.12 identifies the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no 's current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge provides a best estimate of the Companyvalue of the remaining contract ceiling, no circumstances have existed since and provides a best estimate of the Applicable Date portion of the remaining ceiling value that would have warranted such a reportis authorized and remaining.
Appears in 1 contract
Government Contracts. (a) Since Except as set forth in Section B.15 of the Applicable DateDisclosure Schedules or known to the Individual Purchasers, and except for inaccuracies in the Company following as have not had, and its Subsidiaries may not reasonably be expected to have a Material Adverse Effect on the Business, with respect to each fixed price Government Contract with a backlog value in excess of $5,000,000, each "cost plus" Government Contract with a backlog value in excess of $7,500,000 and each Bid that, if accepted, would result in such a Government Contract (a "Government Bid") to which Lockheed Martin or any Affiliated Transferor xx x party with respect to the Business, (i) to the knowledge of Lockheed Martin, Lockheed Martin (or the appxxxxxxe Affiliatex Xxxnsferor) has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein; (includingii) to the knowledge of Lockheed Martin, but not limited to, and as may be applicable, Lockheed Martin (or the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department xxxxicable Affilxxxxx Transferor) has complied with all requirements of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company all Applicable Laws or agreements pertaining to such Government Contract or Material Company Government Bid); (iii) to the knowledge of Lockheed Martin, all representations and xxxxifications executed, acknowledged or set forth in or pertaining to such Government Contract or Government Bid were complete and correct as of their effective date, and Lockheed Martin (or the applicable Affilixxxx Xransferor) has complied in all respects with all such representations and certifications; (iv) neither the U.S. Government nor any prime contractor, subcontractor or other Person has notified Lockheed Martin (or the applicable Affiliaxxx Xxansferor) that Lockheed Martin (or the applicable Affiliatxx Xxxnsferor) has breached or violated any Applicable Law, certification, representation, clause provision or requirement pertaining to such Government Contract or Government Bid; (v) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to such Government Contract or Government Bid; (vi) to the knowledge of Lockheed Martin, no cost incurred by Lockhxxx Xxrtin (or the applicable Affiliatxx Xxxnsferor) pertaining to such Government Contract or Government Bid has been questioned or challenged, is the subject of any investigation or has been (or could reasonably be expected to be) disallowed by the U.S. Government; (vii) to the knowledge of Lockheed Martin, no money due to Lockheed Maxxxx (or the applicable Affiliated Xxxxsferor) pertaining to such Government Contract or Government Bid has been (or has attempted to be) withheld or set off and Lockheed Martin (or the applicable Affiliatex Xxxxsferor) is entitled to all progress payments with respect thereto and (viii) each Government Contract is valid and subsisting.
(b) Since Except as set forth in Section B.15 of the Applicable DateDisclosure Schedules or known to the Individual Purchasers, all representationsand except as has not had, certifications and disclosures made by may not reasonably be expected to have, a Material Adverse Effect on the Company and its Subsidiaries Business, with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, Business; (i) neither to the Company nor any knowledge of Lockheed Martin, none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Companyrespective emploxxxx, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last five years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitAuthority, or any audit or, to the Knowledge of the Company, or investigation of the Company or any of its Subsidiaries by Lockheed Martin with respect to any alleged material irregularityxxxxxularity, misstatement or omission arising under or relating to any Government Contract, Contract or Government Bid; and (ii) during the last five years, Lockheed Martin has not conducted or initiatex xxx internal investigation or, to Lockheed Martin's knowledge, had reason to coxxxxx, xnitiate or report any internal investigation, or made a voluntary disclosure to the Knowledge U.S. Government, with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid. Except as set forth in Section B.15 of the Company, there is no current Disclosure Schedules or outstanding civil investigative demand or subpoena issued known to the Company Individual Purchasers, Lockheed Martin has no knowledge of any irrxxxxxxity, misstatement or any of its Subsidiaries, nor any of its omission arising under or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract or Government Bid that has led or could reasonably be expected to lead, either before or after the Closing Date, to any of the consequences set forth in clause (i) or (ii) of the immediately preceding sentence or any other material damage, penalty assessment, recoupment of payment or disallowance of cost.
(c) Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and except as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, with respect to the Business, to the knowledge of Lockheed Martin, there exist (i) no outstxxxxxx claims against Lockheed Martin or any Affiliated Transfexxx, either by the U.S. Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract or Bid referred to in Section B.15(a) and (iiiii) no disputes between Lockheed Martin or any Affiliated Transferor xxx xxe U.S. Government under the Contract Disputes Act or any other Federal statute or between Lockheed Martin or any Affiliated Transfexxx xnd any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract or Government Bid. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, Lockheed Martin has no knowledge of any faxx xxat could reasonably be expected to result in a claim or a dispute under clause (i) or (ii) of the immediately preceding sentence.
(d) Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, neither Lockheed Martin (or any Affiliated Transferox) (xxth respect to the Company Business), nor to Lockheed Martin's knowledge, any of its Subsidiaries emploxxxx, xxnsultants or agents is (or during the last five years has made been) suspended or debarred from doing business with the U.S. Government or is (or during such period was) the subject of a finding of nonresponsibility or ineligibility for U.S. Government contracting. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, Lockheed Martin does not know of any written disclosure under facts ox xxxxumstances that would warrant the FAR mandatory disclosure suspension or payment provisions debarment, or the finding of nonresponsibility or ineligibility, on the part of Lockheed Martin (includingor any Affiliated Transferox) xx any of Lockheed Martin's (or any Affiliated Transferxx'x) xmployees, but not limited to, FAR 52.203-13(b)(3)) consultants or agents. Except as set forth in Section B.15 of the Disclosure Schedules or known to any Governmental Entitythe Individual Purchasers, and no circumstances except as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to Lockheed Martin's knowledge, the Lockheed Maxxxx Xxxpanies have existed that would have warranted such a disclosurecomplied with xxx xequirements of all material laws pertaining to all Government Contracts and Bids.
(ke) The Company Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and its Subsidiaries except for any of the following as has not had, and their respective employees possess may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Martin, all facility test and personnel security clearances necessary inspection xxxxxts Lockheed Martin (or any Affiliated Transfxxxx) has provided to perform the U.S. Government pursuant to any Government Contract referred to in Section B.15(a) or to any other Person pursuant to any such Government Contract or as a part of the delivery to the U.S. Government pursuant to any such Government Contract of any article designed, engineered or manufactured in the Business were complete and correct as of the date so provided. Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and except for any of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Martin, Lockheed Martin (or an Afxxxxxxed Transferox) xxs provided all Material Company test and inspection results to the U.S. Government pursuant to any such Government Contract as required by Applicable Law and the terms of the applicable Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(lf) The Company Except as set forth in Section B.15 of the Disclosure Schedules or known to the Individual Purchasers, and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding except for any material work of the following as has not had, and may not reasonably be expected to have, a Material Adverse Effect on the Business, to the knowledge of Lockheed Martin, no statement, representatiox xx warranty made by Lockheed Martin (or material future business opportunities due an Affiliated Transferox) xx any Government Contract, any exhibit thereto or in any certificate, statement, list, schedule or other document submitted or furnished to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company the U.S. Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, Bid (i) contained on the Company and its Subsidiaries comply with DFARS 252.204-7012date so furnished or submitted any untrue statement of a material fact, Safeguarding Covered Defense Information and Cyber Incident Reporting or failed to state a material fact necessary to make the statements contained therein, in all light of the circumstances in which they were made, not misleading or (ii) contains on the date hereof any untrue statement of a material respects fact, or fails to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading, except in the case of both clauses (i) and (ii) since the Applicable Date, the Company and its Subsidiaries have any untrue statement or failure to state a material fact that would not submitted result in any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, material liability to the Knowledge Business as a result of the Company, no circumstances have existed since the Applicable Date that would have warranted such untrue statement or failure to state a reportmaterial fact.
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, the Company Seller and its Subsidiaries Affiliates have complied in all material respects with the terms all Laws, Governmental Orders, terms, clauses, certifications, representations, disclosure statements and conditions of compliance requirements with respect to each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited toevery Government Bid, and as may be applicable, there have been no material misstatements or omissions relating to any of the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in Government Contracts or any Material Company Government Contract or Material Company Bid)Bids.
(b) Since the Applicable DateJanuary 1, all representations2013, certifications and disclosures made by the Company and no Governmental Authority, nor any prime contractor or subcontractor, has provided written notice or, to Seller’s Knowledge, any other communication to Seller or its Subsidiaries Affiliates that there has been a breach or violation any Law, certification, representation or clause, provision or requirement with respect to any Government Contract or Company Bid were currentGovernment Bid, accurate and complete at the time of Seller and its Affiliates have not made any voluntary or mandatory disclosure (or have been formally corrected or otherwise finally resolved with in writing to a Governmental Entity)Authority or a prime contractor with respect to any violation of Law, in each caseGovernment Contract, in all material respects, as of their effective dateor Government Bid.
(c) Since Seller, its Affiliates, and their principals (as that term is defined in FAR 52.209-5) are not currently debarred or suspended from doing business with a Governmental Authority, nor have they otherwise been declared ineligible for business with a Governmental Authority. To Seller’s Knowledge, there are no circumstances that would reasonably be expected to warrant the Applicable Date through institution of debarment, suspension or ineligibility proceedings against the date of this AgreementBusiness, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of Seller, its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries hasAffiliates, or is alleged to have, breached or violated their principals in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidthe future.
(d) To the Knowledge of the CompanySeller, neither the Company nor any of its Subsidiaries hasAffiliates, since the Applicable Dateand their principals (as defined in FAR 52.209‑5) are not currently civilly charged, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written criminally indicted or, to the Knowledge of the CompanySeller’s Knowledge, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or in any way relating to any of the Government Contracts or Government Bids, past or present.
(e) Since January 1, 2013, no show cause notices, cure notices, default terminations or negative determinations of responsibility have been issued against Seller or its Affiliates with respect to a Government Contract or Government Bid.
(f) All indirect and general and administrative expense rates applicable to the Government Contracts, if any, are being billed in all material respects consistent with Government-approved rates or provisional rates. To the Seller’s Knowledge, within the past two years, no costs incurred by Seller or its Affiliates have been formally questioned or disallowed as a result of a finding or determination of any kind by a Governmental Authority. If required under any Government Contract, (ii) to Seller’s Knowledge, the Knowledge of the Companycost accounting, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiariesinvoicing, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating and procurement systems applicable to any government Contract or Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances Bid are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied compliance in all material respects with all security obligations incorporated in any Material Company applicable Government Contract or Government Bid terms, conditions, clauses, and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Law.
(lg) The Company There are (i) no Actions pending against Seller or its Affiliates by any Governmental Authority, prime government contractor, or government subcontractor relating to a Government Contract; (ii) no disputes with a Governmental Authority pending or threatened in writing (including requests for equitable adjustment that have not matured into a dispute) relating to a Government Contract; and (iii) no pending audit(s) of Seller or its Subsidiaries Affiliates, either by a Governmental Authority, prime government contractor, or government subcontractor relating to a Government Contract or a Government Bid. To Seller’s Knowledge, there are not currently limited, prohibited or otherwise restricted from performing or bidding for no facts that would reasonably be expected to result in any material work Action, dispute or material future business opportunities due audit relating to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company a Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Contract.
(mh) To the extent applicable, (i) the Company Seller and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information Affiliates possess all necessary security clearances and Cyber Incident Reporting in permits for the execution of its obligations under all material respects and (ii) since the Applicable Date, the Company Government Contracts. Seller and its Subsidiaries have not submitted any cyber incident report pursuant Affiliates currently possess or are eligible to DFARS 252.204-7012(c) or otherwise and, to obtain all necessary security clearances and permits for the Knowledge execution of the Company, no circumstances have existed since the Applicable Date that would have warranted such obligations under all Government Contracts for which it has submitted a reportGovernment Bid.
Appears in 1 contract
Government Contracts. (a) Since To the Applicable Dateknowledge of Shareholders, the Company and its Subsidiaries with respect to each Government Contract or Bid (in each case, as defined below) to which Xxxxx or any affiliate of Xxxxx is a party: (i) Xxxxx have fully complied in with all material respects with the terms and conditions and all applicable requirements of each Material Company Government Contract and Material Company Bid as requiredstatute, including all clausesrule, provisions and requirements regulation, order or agreement, whether incorporated expressly expressly, by reference or by operation of Law therein law; (including, but not limited to, ii) all representations and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure when made, and Xxxxx have fully complied with all such representations and certifications; (iii) no allegation has been made, either orally or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallywriting, that the Company Xxxxx is in breach or violation of any of its Subsidiaries hasstatutory, regulatory or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
contractual requirement; (div) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice has been issued; (excluding for this purpose ineligibility to bid on certain Contracts v) no material cost incurred by Xxxxx or its subcontractors has been questioned or disallowed; and (vi) other than in the ordinary course of business, no money due to generally applicable bidding requirements) Xxxxx has been (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, has threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(ebe) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(jb) Since the Applicable DateNeither Xxxxx, (i) neither the Company nor any affiliate of its SubsidiariesXxxxx, nor any of the respective Xxxxx'x directors, officers or officers, employees, nor, agents or consultants is (or for the last three years has been) (i) except as set forth in Section 2.24(b) of the Shareholders' Schedule and to the Knowledge knowledge of the CompanyShareholders, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award information, audit or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, internal investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission regarding a Government Contract or Bid; or (ii) to the knowledge of Shareholders, suspended or debarred from doing business with the U.S. Government or any state or local government or declared nonresponsible or ineligible for government contracting. Except as set forth in Section 2.24(b) of the Shareholders' Schedule, to the knowledge of Shareholders, neither Xxxxx nor any affiliate of Xxxxx has made a voluntary disclosure to any U.S. Government, state or local government entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government ContractContract or Bid. Except as set forth in Section 2.24(b) of the Shareholders' Schedule, (ii) to the Knowledge knowledge of Shareholders, Xxxxx knows of no circumstances that would warrant the Companyinstitution of suspension or debarment proceedings or the finding of nonresponsibility or ineligibility on the part of Xxxxx in the future.
(c) To the knowledge of Shareholders, there neither the U.S. Government, any state or local government nor any prime contractor, subcontractor or vendor is no current asserting any claim or outstanding civil investigative demand or subpoena issued to the Company or initiating any of its Subsidiariesdispute proceeding against Xxxxx, nor is Xxxxx asserting any of its claim or their respective directorsinitiating any dispute proceeding, officers directly or employees (in each case in their capacity as such)directly, under the civil or criminal False Claims Act relating to against any such party, concerning any Government Contract and (iii) neither or Bid. To the Company nor any knowledge of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (includingShareholders, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and there are no circumstances have existed that would have warranted facts of which Xxxxx is aware upon which such a disclosureclaim or dispute proceeding may be based in the future.
(kd) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable DateFor purposes of this Section 2.24, the Company and its Subsidiaries following terms shall have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.meanings set forth below:
Appears in 1 contract
Government Contracts. (a) Since Section 3.19(a) of the Applicable Date, Disclosure Schedule sets forth a correct and complete list of each Government Contract that is currently in effect pursuant to which the Company is entitled to receive payments in excess of $1,000,000, subject to the terms thereof.
(b) Section 3.19(b) of the Disclosure Schedule sets forth a correct and its Subsidiaries have complete list of each outstanding Government Bid that relates to amounts in excess of $200,000 for which an award has not been issued prior to the date hereof.
(c) Except as set forth in Section 3.19(c) of the Disclosure Schedule, (i) the Company has complied in all material respects with the terms and conditions of all Applicable Laws pertaining to each Material Company Government Contract and Material each Government Bid; (ii) all facts set forth in or acknowledged by the Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Datedisclosure statements, all representations, warranties or certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Government Bid were currentwere, accurate and complete at to the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity)Company’s Knowledge, in each case, in all material respects, materially correct as of their effective submission date.
; (ciii) Since the Applicable Date through the date of this Agreementno termination for convenience, termination for default, cure notice or show cause notice is currently in effect with respect to any Government Contract or Government Bid; (iv) no Governmental Entity nor any prime contractor cost incurred or subcontractor has notified invoice rendered by the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract is currently being challenged by any Governmental Authority, has been disallowed by any Governmental Authority or Company Bid.
is the subject of a formal Government investigation; (dv) To the Knowledge no amount of the Company, neither money due to the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract Bid has been withheld or set off, nor has any claim been made to withhold or set off money; and (vi) all invoices and claims, in each caseincluding requests for progress payments and provisional cost payments, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither submitted by the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged Government Contract or Government Bid were, to the Company’s Knowledge, materially correct and complete in all material irregularityrespects as of their submission date.
(d) Except as set forth in Section 3.19(d) of the Disclosure Schedule, misstatement there have not been and there currently do not exist (i) any material outstanding claims or omission requests for equitable adjustment against the Company by any Governmental Authority or by any prime contractor, higher or lower tier subcontractor, or vendor arising under or relating to any Government Contract, Contract or Government Bid; (ii) to the Knowledge of any material outstanding disputes between the Company, there is no current or outstanding civil investigative demand or subpoena issued to on the Company or one hand, and any of its SubsidiariesGovernmental Authority, nor any of its or their respective directors, officers or employees (in each case in their capacity as such)on the other hand, under the civil Contract Disputes Act of 1978, as amended, or criminal False Claims Act any other Applicable Law, or between the Company, on the one hand, and any prime contractor, higher or lower tier subcontractor, or vendor, on the other hand, arising under or relating to any Government Contract or Government Bid; and (iii) no facts exist which, to the Company’s Knowledge, would reasonably be expected to result in such a dispute in the future that could give rise to material liability.
(e) Except as set forth in Section 3.19(e) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries respective managers, directors or officers, employees, consultants or agents is, or has made any written disclosure under been, debarred or suspended from participation in, or the FAR mandatory disclosure award of, Government Contracts or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to doing business with any Governmental EntityAuthority and, and to the Company’s Knowledge, no circumstances have existed exist that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary reasonably be expected to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since warrant the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding institution of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited formal debarment or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries suspension proceedings in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Bid.
(mf) Except as set forth in Section 3.19(f) of the Disclosure Schedule, the Company has not held a classified Government Contract.
(g) To the extent applicableCompany’s Knowledge, (iexcept as set forth in Section 3.19(g) of the Company and its Subsidiaries comply with DFARS 252.204-7012Disclosure Schedule, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge none of the Company’s revenues or currently booked orders by customers were or are subject to any set-aside, no circumstances have existed since the Applicable Date that would have warranted such a reportsmall, minority or disadvantaged business program.
Appears in 1 contract
Government Contracts. (a) Since There are no disputes pending or, to the Applicable DateCompany’s knowledge, threatened with respect to any Company Government Contract except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, with respect to each Company Government Contract, since January 1, 2007: (i) each of the Company and its Subsidiaries have has complied in with all material respects with the terms and conditions of each Material laws pertaining to such Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation Contract; (ii) each of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries has complied with respect to any Government Contract or Company Bid were currentall requirements of governmental statutes, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity)rules, in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing regulations or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement orders pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material such Company Government Contract, and, since the Applicable Date, no Governmental Entity has, ; (iii) each representation and certification directly or indirectly made to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against a formal certification executed by the Company or its Subsidiaries in connection with any pertaining to such Company Government Contract to which was true and correct in all material respects as of its effective date, and the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any each of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection complied with any Material Company Government Contract by any Governmental Entity
each such representation and certification; and (h) Since the Applicable Date, (iiv) neither the Company nor any of its Subsidiaries has been the subject of a written finding of submitted any non-responsibility current, inaccurate or ineligibility for government contracting incomplete cost or pricing data to any Governmental Entity or higher tier prime contractor in connection with such Company Government Contract. With respect to each Company Government Contract, (x) no suspension, stop work order, cure notice or show cause notice in effect with respect to any such Company Government Contract has been issued and remains unresolved nor, to the Company’s knowledge, has any Governmental Entity threatened to issue one and (iiy) neither the Company nor its Subsidiaries has received any written notice of the intention of any other party to a Company Government Contract to terminate for default, convenience or otherwise any Company Government Contract nor, to the Company’s knowledge, is any such party threatening to do so and (z) to the knowledge of the Company, neither the Company nor its Subsidiaries is aware of any organizational conflicts of interest that might arise as a result of the Merger or the other transactions contemplated by this Agreement.
(c) With respect to the Company Government Contracts (i) to the knowledge of the Company, there is no pending administrative, civil fraud or criminal investigation or indictment of the Company, any of its Subsidiaries nor or any director director, officer or officer employee of the Company or any of its Subsidiaries has been debarred by any Governmental Entity with respect to any alleged or suspendedpotential violation of law regarding any Company Government Contract; (ii) neither the Company nor any of its Subsidiaries nor, or to the Knowledge knowledge of the Company, any of their respective directors, officers or employees is suspended or debarred from doing business with the U.S. Government or declared nonresponsible or ineligible for U.S. Government contracting and there is no pending suspension, debarment or equivalent proceeding against the Company or any of its Subsidiaries or, to the knowledge of the Company, any director, officer or employee of the Company proposed or any of its Subsidiaries; and (iii) there is no (A) outstanding written request by the U.S. Government for a finding material contract price adjustment based on a claimed disallowance by the Defense Contract Audit Agency or claim of debarment defective pricing; or suspension, from participation in the award of Contracts (B) unresolved material claim or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred equitable adjustment by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questionedagainst the U.S. Government. Since January 1, proposed for disallowance2007, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective Company’s or its Subsidiaries’ directors, officers or employeesemployees has hired any law firm or outside counsel to conduct any internal investigation, nor, or made a voluntary disclosure to the Knowledge of the CompanyU.S. Government, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the or Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureBid.
(kd) The Company and its Subsidiaries and their respective employees possess all facility and personnel government security clearances necessary to perform all Material the Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(le) The For the purposes of this Agreement, “Company and Government Contract” means any prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, pricing agreement, letter contract or any other similar arrangement or commitment of any kind between the Company or any of its Subsidiaries are not currently limitedand (i) the U.S. Government, prohibited (ii) any prime contractor to the U.S. Government in its capacity as a prime contractor or otherwise restricted from performing or bidding for (iii) any material work or material future business opportunities due subcontractor with respect to “organizational conflicts any contract of interest” a type described in clauses (as defined in FAR Subpart 9.5i) or Material (ii) above. For the purposes of this Agreement, “Company Government Contract terms Bid ” means any quotation, bid or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted proposal by the Company or any of its Subsidiaries that, if accepted or awarded, would result in connection with any Material a Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material other than a Company Government Contract available to Parent is prohibited by applicable national security or similar LawBid).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since December 31, 2011, and except as has not had and would not be reasonably likely to have, individually or in the Applicable Dateaggregate, the Company and an Acquiror Material Adverse Effect, with respect to each prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, blanket purchase agreement, letter agreement, purchase order, delivery order, task order, grant, cooperative agreement, bid, change order or other commitment or funding vehicle between Acquiror or any of its Subsidiaries have and (i) a Governmental Entity, (ii) any Government Prime Contractor or (iii) any Government Subcontractor, (A) Acquiror and each of its Subsidiaries has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredContracts, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein, (including, but not limited to, B) Acquiror and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department each of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries has complied with respect all material requirements of applicable Law pertaining to any such Government Contract Contracts, (C) all representations and certifications executed, acknowledged or Company Bid set forth in or pertaining to such Government Contracts were current, accurate complied with and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
, and Acquiror and each of its Subsidiaries has complied in all material respects with all such representations and certifications, (cD) Since neither the Applicable Date through the date of this Agreement, no Governmental Entity United States Government nor any prime contractor Government Prime Contractor or subcontractor Government Subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company Acquiror or any of its Subsidiaries hasin writing that Acquiror or such Subsidiary has materially breached or materially violated any applicable Law, or is alleged to have, breached or violated in any material respect any Lawcertification, representation, certification, disclosure, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
Contracts, (dE) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material or cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in under the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that Federal Acquisition Regulations has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes given (as such concept and is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries currently in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, effect as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating ) pertaining to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse claim or negative past performance evaluations or ratings in connection with any Material Company Government Contract request for equitable adjustment by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Acquiror or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by against a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (iiF) no payment due to Governmental Entity has requested a material contract price adjustment based on a claimed material disallowance by the Company Defense Contract Audit Agency (or any other applicable Governmental Authority) or claim of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000defective pricing.
(jb) Since the Applicable Date, (i) neither the Company Neither Acquiror nor any of its Subsidiaries, nor any of the their respective directors, officers or employees, nor, to employees (i) is (or during the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularity, material misstatement or material omission arising under or relating to any Government Contract (other than routine Defense Contract Audit Agency audits, in which no such material irregularities, material misstatements or material omissions were identified) or (ii) during the last three years has conducted or initiated any material internal investigation or made a voluntary disclosure to the United States Government, with respect to any material irregularity, misstatement or omission arising under or relating to any Government Contract.
(c) Except as has not had and would not be reasonably likely to have, (ii) to individually or in the Knowledge of the Companyaggregate, an Acquiror Material Adverse Effect, there is exist (i) no current or outstanding civil investigative demand or subpoena issued to the Company claims against Acquiror or any of its Subsidiaries, either by the United States government or by any Government Prime Contractor or Government Subcontractor arising under or relating to any Government Contracts and (ii) no disputes between Acquiror or any of its Subsidiaries and the United States Government under the Contract Disputes Act of 1978, as amended, or any other federal statute or between Acquiror or any of its Subsidiaries and any Government Prime Contractor or Government Subcontractor arising under or relating to any Government Contract.
(d) Neither Acquiror, any of its Subsidiaries nor any of its or their respective directors, officers officers, or employees is or for the last three years has been formally debarred or formally suspended from participation in the award of contracts with any Governmental Entity or has been declared ineligible for contracting with any Governmental Entity.
(e) Except as has not had and would not be reasonably likely to have, individually or in each case in their capacity as such)the aggregate, under the civil or criminal False Claims Act relating to any Government Contract and (iii) an Acquiror Material Adverse Effect, neither the Company Acquiror nor any of its Subsidiaries has made received an adverse or negative government past performance evaluation or rating -44- that could adversely affect the evaluation by the Government, prime contractor, or higher tier subcontractor, as applicable, of any written disclosure under quotation, bid or proposals for an award of a new Government Contract or the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosurerenewal of an existing Government Contract.
(kf) The Company Except as has not had and would not be reasonably likely to have, individually or in the aggregate, an Acquiror Material Adverse Effect, Acquiror and each of its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all applicable national security obligations and security measures required by their Government Contracts or applicable to the Company Law, and its Subsidiaries relating to the safeguarding of and access to classified informationthere are no facts or circumstances that would, including those specified or would be reasonably likely to, result in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited suspension or otherwise restricted from performing termination of Government security clearances or bidding for any material work or material future business opportunities due that would be reasonably likely to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company render Acquiror or any of its Subsidiaries ineligible for such security clearances in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)future.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Transaction Agreement (Chicago Bridge & Iron Co N V)
Government Contracts. (a) Since There are no disputes pending or, to the Applicable DateCompany’s knowledge, threatened with respect to any Company Government Contract except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company.
(b) Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company, with respect to each Company Government Contract, since January 1, 2007: (i) each of the Company and its Subsidiaries have has complied in with all material respects with the terms and conditions of each Material laws pertaining to such Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation Contract; (ii) each of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries has complied with respect to any Government Contract or Company Bid were currentall requirements of governmental statutes, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity)rules, in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing regulations or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement orders pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material such Company Government Contract, and, since the Applicable Date, no Governmental Entity has, ; (iii) each representation and certification directly or indirectly made to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against a formal certification executed by the Company or its Subsidiaries in connection with any pertaining to such Company Government Contract to which was true and correct in all material respects as of its effective date, and the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any each of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection complied with any Material Company Government Contract by any Governmental Entity
each such representation and certification; and (h) Since the Applicable Date, (iiv) neither the Company nor any of its Subsidiaries has been the subject of a written finding of submitted any non-responsibility current, inaccurate or ineligibility for government contracting incomplete cost or pricing data to any Governmental Entity or higher tier prime contractor in connection with such Company Government Contract. With respect to each Company Government Contract, (x) no suspension, stop work order, cure notice or show cause notice in effect with respect to any such Company Government Contract has been issued and remains unresolved nor, to the Company’s knowledge, has any Governmental Entity threatened to issue one and (iiy) neither the Company nor its Subsidiaries has received any written notice of the intention of any other party to a Company Government Contract to terminate for default, convenience or otherwise any Company Government Contract nor, to the Company’s knowledge, is any such party threatening to do so and (z) to the knowledge of the Company, neither the Company nor its Subsidiaries is aware of any organizational conflicts of interest that might arise as a result of the Merger or the other transactions contemplated by this Agreement.
(c) With respect to the Company Government Contracts (i) to the knowledge of the Company, there is no pending administrative, civil fraud or criminal investigation or indictment of the Company, any of its Subsidiaries nor or any director director, officer or officer employee of the Company or any of its Subsidiaries has been debarred by any Governmental Entity with respect to any alleged or suspendedpotential violation of law regarding any Company Government Contract; (ii) neither the Company nor any of its Subsidiaries nor, or to the Knowledge knowledge of the Company, any of their respective directors, officers or employees is suspended or debarred from doing business with the U.S. Government or declared nonresponsible or ineligible for U.S. Government contracting and there is no pending suspension, debarment or equivalent proceeding against the Company or any of its Subsidiaries or, to the knowledge of the Company, any director, officer or employee of the Company proposed or any of its Subsidiaries; and (iii) there is no (A) outstanding written request by the U.S. Government for a finding material contract price adjustment based on a claimed disallowance by the Defense Contract Audit Agency or claim of debarment defective pricing; or suspension, from participation in the award of Contracts (B) unresolved material claim or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred equitable adjustment by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questionedagainst the U.S. Government. Since January 1, proposed for disallowance2007, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective Company’s or its Subsidiaries’ directors, officers or employeesemployees has hired any law firm or outside counsel to conduct any internal investigation, nor, or made a voluntary disclosure to the Knowledge of the CompanyU.S. Government, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the or Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureBid.
(kd) The Company and its Subsidiaries and their respective employees possess all facility and personnel government security clearances necessary to perform all Material the Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(le) The For the purposes of this Agreement, “Company and Government Contract” means any prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, pricing agreement, letter contract or any other similar arrangement or commitment of any kind between the Company or any of its Subsidiaries are not currently limitedand (i) the U.S. Government, prohibited (ii) any prime contractor to the U.S. Government in its capacity as a prime contractor or otherwise restricted from performing or bidding for (iii) any material work or material future business opportunities due subcontractor with respect to “organizational conflicts any contract of interest” a type described in clauses (as defined in FAR Subpart 9.5i) or Material (ii) above. For the purposes of this Agreement, “Company Government Contract terms Bid” means any quotation, bid or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted proposal by the Company or any of its Subsidiaries that, if accepted or awarded, would result in connection with any Material a Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material other than a Company Government Contract available to Parent is prohibited by applicable national security or similar LawBid).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Triumph Group Inc)
Government Contracts. (a) Since the Applicable DateDate neither the Company, nor any of its Subsidiaries, nor to the Knowledge of the Company, any of their respective officers, senior management or employees, has been debarred, excluded or suspended from, or declared nonresponsible or ineligible for, government procurement pursuant to 48 C.F.R. subpart 9.4, or any comparable state or local Laws and, to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to debarment, exclusion, suspension, or a declaration that the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference is nonresponsible or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid)ineligible for government procurement.
(b) (b) Since the Applicable Date, (i) the Company has been in compliance in all material respects with the terms of all Government Contracts, the federal acquisition regulations, and all comparable state or local procurement Laws; (ii) the Company has not been in default under a Government Contract and no Government Contract has been terminated for cause.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all representations, certifications and disclosures made statements executed, acknowledged and submitted by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time on behalf of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries hasin connection with Government Contracts were current, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidaccurate and complete as of their respective effective dates.
(d) To Except as would not reasonably be expected to have, individually or in the Knowledge of the Companyaggregate, neither the a Company nor any of its Subsidiaries hasMaterial Adverse Effect, since the Applicable Date, received all invoices and claims submitted for payment, reimbursement or is subject to adjustment submitted by the Company or any notice of termination for convenienceits Subsidiaries were current, notice accurate and complete as of termination for default, stop work order, material cure notice or material show cause notice its submission dates.
(excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementse) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since Since the Applicable Date, no Governmental Entity has, to other than in the Knowledge ordinary course of the Company, threatened to issue any such notice. Since the Applicable Datebusiness, neither the Company nor any of its Subsidiaries has received conducted or initiated any written orinternal investigation, made a voluntary or been obligated to the Knowledge of the Company, oral notice from provide a material mandatory disclosure to any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Body with respect to any alleged material or potential irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureGovernment Bid.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Agiliti, Inc. \De)
Government Contracts. (a) Since Each Government Contract, to which either of the Applicable DateCompanies is a party under which either of the Companies is performing and on which final payment has not been received as of the date hereof (each an “Active Government Contract”), is listed under Section 3.18(a) of the Disclosure Schedule (true and complete copies of which, including all modifications and amendments thereto, have been made available by the Seller to the Purchaser).
(b) Section 3.18(b) of the Disclosure Schedule lists and identifies each outstanding bid, proposal, offer or quotation made by either of the Companies or joint venture as of the date hereof, in which either Company is participating, that, if accepted, would lead to a Government Contract (each, a “Bid”) (true and complete copies of which, including all modifications and amendments thereto, have been made available by the Seller to the Purchaser). All outstanding Bids were made in the Ordinary Course of Business in a manner consistent with past practice. With respect to each outstanding Bid: (i) to the Seller’s Knowledge, the applicable Company has complied with all applicable Laws, (ii) all representations and certifications executed by either of the Companies pertaining to such Bid were complete and correct as of their effective date and (iii) neither Company has submitted any inaccurate, incomplete or untruthful cost or pricing data in connection therewith and that would subject such Company to damages or liability under the Truth in Negotiations Act other than a price reduction to reflect the adjustment of such data.
(c) As of the date hereof, no Active Government Contract directly between a Company and a Governmental Customer is the subject of bid or award protest proceeding; and, to the Knowledge of the Seller, each such Active Government Contract was legally awarded.
(d) As of the date hereof, with respect to each Active Government Contract (i) there are no audits, reviews, inspections, investigations, surveys or examinations of records, completed within the past three (3) years or, to the Seller’s Knowledge, underway, by any Governmental Customer that have questioned or disallowed any costs claimed by either Company under such Government Contracts, or recommended that either of the Companies make any payments to a Governmental Customer, or have revealed any fact, occurrence, or practice that could affect the assets, business or financial statement of either Company or its Subsidiaries have continued eligibility to receive and perform Government Contracts, (ii) each Company has complied in all material respects with all applicable Laws and statutory and regulatory requirements, including the Armed Services Procurement Act, the Federal Procurement and Administrative Services Act, the Federal Acquisition Regulation (the “FAR”), the FAR cost principles, and the Cost Accounting Standards, pertaining to such Government Contracts and to each of the Companies’ quotations, bids and proposals submitted within the past three (3) years for Government Contracts, (iii) each Company has complied in all material respects with all terms and conditions of each Material Company Government Contract and Material Company Bid as requiredconditions, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (includingprovisions, but not limited tospecifications, and as may be applicablequality assurance, the Truthful Cost testing and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation inspection requirements, of such Government Contracts, (“FAR”), Department of Defense FAR Supplement (“DFARS”iv) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures or disclosure statements made or submitted by or on behalf of either of the Company and its Subsidiaries Companies within the past three (3) years in connection with respect to any Government Contract or Company Bid and, to the Seller’s Knowledge, its quotations, bids and proposals for Government Contracts were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreementtheir submission, (v) there is, to Seller’s Knowledge, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for defaultsuspension, stop work order, material cure notice or material notice, show cause notice (excluding for this purpose ineligibility or termination notice from a Governmental Customer to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws either of the United States, the functional equivalents thereof, if any) pertaining to Companies in effect for any Material Company Government Contract, andnor has any Governmental Customer threatened in writing to issue one, since and (vi) within the Applicable Datepast three (3) years, no neither Company has been assessed, nor has any Governmental Entity has, Customer threatened in writing to the Knowledge assess against either of the CompanyCompanies any penalties, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining credits or other similar contractual offsets pursuant to any Material Company performance-based Government Contract indicating that it intends to cancel contains service level arrangements or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiariesother similar performance measures.
(e) Since the Applicable Date, no material written or, The Companies have developed and implemented corporate practices and procedures designed to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved ensure compliance with the applicable Governmental Entity) under the United States civil or criminal False Claims ActGovernment procurement statutes, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any regulations and Government Contract to which the Company or its Subsidiaries is a partyrequirements.
(f) To Within the Knowledge of the Company, as of the date of this Agreementpast three (3) years, there exists has been no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspensionSeller’s Knowledge, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment indictment, or criminal information of either of the Companies by any Governmental Entity with respect Authority, (ii) administrative or civil litigation, of which either of the Companies is a party, involving alleged false statements, false claims or other misconduct relating to any Government Contract or quotations, bids and proposals for Government Contracts, (iii) to the award or performance of any Government ContractSeller’s Knowledge, the subject of any actual or threatened in writingcure notice, “whistleblower” or “qui tam” lawsuitshow cause letter, or any audit or, to the Knowledge notice of the Company, investigation of the default termination received by either Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or from a Governmental Customer relating to any Government Contract, (iiiv), withholding or set-off (other than the hold-backs pursuant to Contracts in the Ordinary Course of Business) of material amounts of money otherwise acknowledged to be payable to either of the Companies under a Government Contract by a Governmental Customer, (v) actual or proposed suspension or debarment of either of the Companies or, to the Knowledge Seller’s Knowledge, any director, officer, employee, consultant or Affiliate of the Companyeither Company from eligibility for Government Contracts, there is no current or outstanding civil investigative demand or subpoena issued (vi) written notice to the either Company or any of its Subsidiaries, nor any a determination of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating non-responsibility rendered by a Governmental Customer against either Company with respect to any quotation, bid or proposal for a Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureContract.
(kg) The Except for those liens listed in Section 3.18(g) of the Disclosure Schedule, made in accordance with 31 U.S.C. § 3727 (as amended), otherwise known as the Assignment of Claims Act, and 41 U.S.C. § 15 (as amended), otherwise known as the Anti-Assignment Act, neither Company has assigned or agreed to assign to any Person any right, title or interest in or to any of the Government Contracts directly between a Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contractsa Governmental Customer, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in or any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries account receivable relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117thereto.
(lh) The Except as set forth in Section 3.18(h) of the Disclosure Schedule, no Government Contract was awarded to either Company based on such Company’s certification that it is or was a small business, Section 8(a) business concern, small disadvantaged business, woman-owned small business, historically underutilized business zone small business, veteran-owned small business or service-disabled veteran-owned small business status.
(i) Except as would not have a Material Adverse Effect, neither Company has failed within the past three (3) years to comply with applicable Laws with respect to the possession and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts maintenance of interest” government-furnished property (as defined in FAR Subpart 9.5the FAR) or Material Company Government Contract terms or provisionswith respect to the FLSA, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company SCA or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to wage determinations issued under the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)SCA.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Stock Purchase Agreement (HLTH Corp)
Government Contracts. (a) Since Section 3.14(a) of the Applicable DateCompany Disclosure Schedule sets forth a true, correct and complete list of each Government Contract and Government Bid to which the Company or any of its Subsidiaries is a party or by which either the Company or any of its Subsidiaries is bound.
(b) (i) The Company and its Subsidiaries have complied with all material terms and conditions of each Government Contract and, to the Knowledge of the Company, each Government Bid to which it or its Subsidiaries is a party; (ii) the Company and its Subsidiaries have complied in all material respects with the terms and conditions requirements of each Material Company any Law pertaining to such Government Contract and Material Company Bid as requiredand, including all clausesto the Knowledge of the Company, provisions and requirements incorporated expressly by reference or by operation of Law therein (Government Bid, including, but not limited to, any applicable export control laws and as may be applicableregulations, data privacy laws and regulations, and any applicable procurement or acquisition laws or regulations, including but not limited to the Federal Acquisition Regulation and applicable agency supplements, the Truthful Cost Anti-Kickback Act of 1986, 41 U.S.C. 51, and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act, 41 U.S.C. 423, except where the failure to comply has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; the Cost Accounting Standards; (iii) all representations and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries or any Subsidiary with respect to any a Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallya Government Bid were accurate in all material respects as of their effective date, and the Company has complied with such representations and certifications in all material respects; (iv) to the Knowledge of the Company, no default termination notice, cure notice, suspension of contract award notice, show cause notice or suspension order has been issued and remains unresolved with respect to any such Government Contract, and no event, condition or omission has occurred or exists that would constitute grounds for such action; (v) neither the United States Government, the British Government, the Commission of the European Communities, nor any prime contractor, subcontractor, vendor or other third party has notified the Company in writing that the Company or any of its Subsidiaries has, or is alleged to have, has breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision Law pertaining to such Government Contract or requirement Government Bid; and (vi) no money due to the Company pertaining to any such Government Contract or Company BidGovernment Bid has been withheld or set off.
(dc) (i) To the Knowledge of the Company, neither the Company Company, nor any of its Subsidiaries hasor employees is or has been under any administrative, since civil or criminal investigation or indictment by any Governmental Authority with respect to the Applicable Date, received or is subject conduct of the business of the Company in relation to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice such Government Contract or material show cause notice Government Bid; (excluding for this purpose ineligibility ii) to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws Knowledge of the United StatesCompany, there is neither any pending audit or investigation of the functional equivalents thereofCompany or its Subsidiaries, if anyincluding, without limitation, incurred cost audits and accounting system reviews, nor has there been any audit or investigation of the Company or any of its Subsidiaries which resulted in any adverse finding with respect to any alleged irregularity, misstatement or omission arising under or relating to any such Government Contract or Government Bid; (iii) to the Knowledge of the Company, no cost incurred by the Company or its Subsidiaries pertaining to any Material Company such Government Contract, Contract or Government Bid has been disallowed by any Governmental Authority or is the subject of an investigation and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue there is no basis upon which any such notice. Since incurred cost will be disallowed in the Applicable Date, future by any Governmental Authority; and (iv) neither the Company nor any of its Subsidiaries Subsidiary has received made any written ordisclosure to any Governmental Authority with respect to any alleged, unresolved irregularity, misstatement or omission arising under or relating to the Knowledge any such Government Contract or Government Bid.
(d) Except as set forth on Section 3.14(d) of the CompanyCompany Disclosure Schedule, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with there are (i) no outstanding claims against the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written oreither by a Governmental Authority or by any prime contractor, to the Knowledge of the Companysubcontractor, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Actvendor, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) supplier or other criminal Law has been made third party arising under or has been pending against the Company or its Subsidiaries in connection with relating to any Government Contract or Government Bid to which the Company or its Subsidiaries is a party.
; and (fii) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any Subsidiary and any Governmental Authority under the Contract Disputes Act of its Subsidiaries1978, as amended (“Contract Disputes Act”) or any other statute, or between the Company, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor subcontractor or other Personvendor, on the other hand, arising under or relating to any such Government Contract or Company Government Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any . No Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor Authority has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit pending or, to the Knowledge of the Company, investigation of potential claim against the Company or its Subsidiaries arising under or relating to any Government Contract or Government Bid to which the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, is a party.
(iie) to To the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued all Government Contracts have been awarded to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects compliance with all security obligations incorporated in any Material Company applicable Laws. There are no Government Contract and all national security obligations applicable Contracts or Government Bids to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by which the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent is a party or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) bound premised on the Company and or any of its Subsidiaries comply with DFARS 252.204-7012having 8(a) status, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (iismall business status, small disadvantaged business status, protégé status or other preferential status, except as set forth on Section 3.14(e) since the Applicable Date, of the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportDisclosure Schedule.
Appears in 1 contract
Government Contracts. (a) Since Section 3.20(a) of the Applicable DateDisclosure Schedules lists all: (i) Government Contracts the period of performance of which has not yet expired or terminated or for which final payment has not yet been received, in each case, exceeding annual recurring revenue of $250,000 (the “Current Government Contracts”), and (ii) Government Contracts pursuant to which the Company and its Subsidiaries have complied is currently or is reasonably likely to experience cost, schedule, technical or quality problems that would reasonably be likely to result in claims against the Company (or its respective successors in interest) by a Governmental Authority, a prime contractor or a higher-tier subcontractor. The Company has delivered to the Buyer true and complete copies of all material respects with the terms Current Government Contracts and conditions of each Material Company all Government Contract and Material Company Bid as requiredBids, including any and all clauses, provisions amendments and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited toother modifications thereto, and as may be applicablehas provided the Buyer with access to true and correct copies of all documentation related thereto; provided, that the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department Company has not delivered copies of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Current Government Contract whose existence or Material Company Bid)terms is subject to classified requirements.
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Each Current Government Contract was legally awarded, is binding on the parties thereto, and is in full force and effect. The Current Government Contracts are not currently the subject of bid or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing oraward protest proceedings and, to the Knowledge of the Company, orallyno Current Government Contract is reasonably likely to become the subject of bid or award protest proceedings, that and no Person has notified the Company that any Governmental Authority, prime contractor or higher-tier subcontractor under a Government Contract intends to cancel or reduce the value of any of its Subsidiaries has, Current Government Contract or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining seek the Company’s agreement to lower rates under any Government Contract or Company Government Contract Bid.
(dc) To the Knowledge of the Company, neither within the last three (3) years, the Company nor any has complied in all material respects with all terms and conditions of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company each Current Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any and Government Contract to which the Company or its Subsidiaries is a party.
(f) Bid, and has performed all obligations thereunder. To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company statutory and regulatory requirements applicable to each Current Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisionsBid. To the Knowledge of the Company, except pursuant the representations, certifications and warranties related to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company each Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting Bid were accurate in all material respects as of their effective date and (ii) since the Applicable Dateremain accurate or have been updated as circumstances permit, and the Company has complied in all material respects with all such representations, certifications and its Subsidiaries have warranties. The Company has not submitted received any cyber incident report pursuant past performance evaluation or rating with less than a “satisfactory” rating for any performance element that could reasonably be expected to DFARS 252.204adversely affect the evaluation of the Company’s bids or proposals for future Government Contracts. There has not been any material withholding or setoff related to any Current Government Contract.
(d) With respect to the Current Government Contracts, no Governmental Authority, prime contractor, or higher-7012(c) or otherwise andtier subcontractor under a Government Contract, nor any other Person, has notified in writing or, to the Knowledge of the Company, notified verbally, the Company of any actual or alleged violation or breach in any material respect of any statute, regulation, representation, certification, disclosure obligation, contract term, condition, clause, provision or specification.
(e) None of the Current Government Contracts listed in Section 3.20(a) of the Disclosure Schedules was awarded on the basis of its status as (i) a Small Business (as defined in the regulations of the U.S. Small Business Administration at 13 C.F.R. Part 121); (ii) a Small Disadvantaged Business (as defined in the regulations of the U.S. Small Business Administration at 13 C.F.R. Part 124); or (iii) a Service-Disabled Veteran-Owned Small Business or a Veteran- Owned Small Business (as defined in the regulations of the U.S. Small Business Administration at 13 C.F.R. Part 125). Each representation and/or certification made by the Company and its Subsidiaries or incorporated into any Government Contract or Government Contract Bid that pertains to any size status or other preferential status was current and accurate as of its effective date. The Company and its Subsidiaries have complied with all Laws that require the Company or any of its Subsidiaries to provide notice or acknowledgement of any change in size status or preferential status. (f) Neither the Company nor any of its Subsidiaries has taken any action or is party to any litigation that could reasonably be expected to give rise to: (i) liability under the False Claims Act, (ii) a claim for price adjustment under the Truthful Cost or Pricing Data Act or FAR Part 31 cost principles, (iii) any other request for a reduction or cost adjustment in the price of any Government Contracts. There exists no circumstances basis for a claim of any liability of the Company by any Governmental Authority due to defective cost or pricing data, or other than certified cost or pricing data. The Company and its Subsidiaries are not aware of any allegation, act, or omission arising under, or relating to any potential liability under (i), (ii) or (iii) above, and none of the Company and its Subsidiaries have existed since the Applicable Date that would have warranted such not made a reportvoluntary or involuntary disclosure to any Governmental Authority.
Appears in 1 contract
Samples: Stock Purchase Agreement (Progress Software Corp /Ma)
Government Contracts. Except for Section 4.14(a), which applies to the time periods set forth therein, at all times since January 1, 1998:
(a) Since Section 4.14(a)(i)-(iv) of the Applicable DateParent Disclosure Schedules set forth a true and complete list of (i) all Government Contracts, past and present, awarded by the Company and Government or by any higher tier subcontractor or prime contractor to the Government to Parent or any of its Subsidiaries since December 31, 2002, (ii) all Government Contracts (including options) currently in force between Parent or any of its Subsidiaries and either the Government or any higher tier subcontractor or prime contractor of the Government, (iii) all outstanding quotations, bids and proposals submitted by Parent or any of its Subsidiaries to either the Government or any proposed higher tier subcontractor or prime contractor of the Government, and (iv) all Government Contracts (including options) on which delivery or performance is currently in an unsatisfactory or delinquent status, behind schedule or which Parent or any of its Subsidiaries has Actual Knowledge or should have Actual Knowledge will be unsatisfactory, behind schedule or delinquent in the future.
(b) Parent has complied in all material respects with the terms all statutory and conditions of regulatory requirements with respect to each Material Company Government Contract and Material Company Bid as requiredeach bid, including quotation or proposal submitted by Parent to the Government or any prospective higher tier subcontractor or prime contractor of the Government.
(c) Parent has complied in all material respects with each and every certification executed, acknowledged or set forth by Parent with respect to each Government Contract awarded to Parent and each bid, quotation or proposal submitted by Parent to the Government or any higher tier subcontractor or prospective prime contractors of the Government.
(d) Parent has complied in all material respects with each representation executed, acknowledged or set forth by Parent with respect to each Government Contract awarded to Parent and each and every bid quotation or proposal submitted by Parent to the Government or any higher tier subcontractor or prospective prime contractor of the Government.
(e) Parent has complied in all material respects with all contract clauses, provisions and requirements incorporated expressly expressly, by reference reference, or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company each Government Contract or Material Company Bid)awarded to Parent.
(bf) Since the Applicable DateAny and all facts set forth in or acknowledged by Parent in any certifications, all representations, certifications and disclosures made representations or disclosure statements submitted by the Company and its Subsidiaries Parent with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective datethe date of submission.
(cg) Since Neither the Applicable Date through the date of this Agreement, no Governmental Entity Government nor any higher tier subcontractor or prime contractor or subcontractor has notified the Company Parent, either orally or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallywriting, that the Company or any of its Subsidiaries has, or is alleged to have, Parent has breached or violated in any all material respect any Lawregulation, representationstatute, certification, disclosure, representation or contract clause, provision or requirement pertaining with respect to any Government Contract awarded to Parent or Company Bidwith respect to any bid, quotation or proposal submitted by Parent. W02-SD:6AFP1\51393538 -41- Agreement and Plan of Merger 09EY-117690 PAGE
(h) Parent is not currently debarred or suspended from doing business with the Government and Parent knows of no circumstances that would warrant the institution of debarment or suspension proceedings in the future.
(di) To the Knowledge of the Company, neither the Company nor No show cause notices or cure notices have been issued against Parent on any of its Subsidiaries has, since Government Contracts with the Applicable Date, received Government or is subject on any of the its Contracts relating to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor .
(j) No default terminations have ever been issued against Parent on any of its Subsidiaries has received Contracts with the Government or on any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining its Contracts relating to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its SubsidiariesContract.
(ek) Since the Applicable Date, no material written or, to the Knowledge No negative determination of the Company, oral claim (other than any such claim that responsibility has ever been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending issued against the Company or its Subsidiaries Parent in connection with any Government Contract to which the Company bid, quotation or its Subsidiaries is a partyproposal submitted by Parent.
(fl) To No costs incurred by Parent have been disallowed or, within the Knowledge last six months, questioned, in either case as a result of a finding or determination of any kind by the CompanyGovernment.
(m) Neither the Government nor any higher tier subcontractor or prime contractor under a Government prime contract has withheld or setoff monies, as of or in the date of this Agreementlast six months attempted to withhold or set off material monies, there exists no outstanding asserted disputes due to Parent or has made any claims for an amount in excess of $25,000,000 between the Company or against Parent under any of its Subsidiaries, on the one handContracts, and there are no outstanding claims arising under any Government Contract.
(n) To Parent's Knowledge there are not any irregularities, misstatements or omissions relating to any of its Government Contracts, bids, quotations or proposals, past or present, that have led or could lead to, either before or after the applicable Governmental Entity Merger, (i) any administrative, civil or criminal investigation or indictment of Parent, (ii) the questioning or disallowance of any costs submitted for payment by Parent or The Company, (iii) the recoupment of any payments previously made to Parent, or (iv) the assessment of any penalties or damages of any kind against Parent or The Company, arising out of such irregularities, misstatements or omissions.
(o) Parent is not currently under administrative, civil or criminal investigation indictment with respect to any alleged irregularity, misstatement or omission arising under or in any way relating to any of its Government Contracts, bids, quotations or proposals, past or present.
(p) Except as set forth in Section 4.14(p) of the Parent Disclosure Schedules, there exist (i) no outstanding claims against Parent either by the Government or by higher tier subcontractor, any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission third party arising under or relating to any Government Contract, (ii) to no facts or allegations which are known or should be known by Parent upon which such a material claim may reasonably be based in the Knowledge of future, (iii) no disputes between Parent and the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company Government or any of its Subsidiariesprime contractor, nor any of its higher or their respective directors, officers lower tier subcontractor or employees (in each case in their capacity as such), vendor arising under the civil or criminal False Claims Act relating to any Government Contract Contract, and (iiiiv) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure no facts or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted allegations which are known or should be known by Parent over which such a disclosurematerial dispute may reasonably arise in the future.
(kq) The Company Except as set forth in Section 4.14(q) of the Parent Disclosure Schedules, Parent is not undergoing and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contractshas not undergone any audit, and all such security clearances are valid and has no Actual Knowledge or reason to know of any basis for impending audits in full force and effect. Since the Applicable Datefuture, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries arising under or relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117any Government Contract.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Spacedev Inc)
Government Contracts. (a) Since Section 5.19(a)(i) of the Applicable SRA Disclosure Schedule sets forth as of the date hereof a current, complete and accurate list of the current top 27 Government Contracts of SRA or any of its Subsidiaries the period of performance of which has not yet expired or terminated or for which final payment has not yet been received. Except for organizational conflicts of interest arising in connection with the transactions contemplated by the Transaction Agreements, to the Knowledge of SRA, each Government Contract of SRA or its Subsidiaries is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against SRA or its Subsidiaries and, to the Knowledge of SRA or its Subsidiaries, against the other parties thereto, in accordance with its terms. Immediately prior to the Closing Date, SRA shall deliver to CSC a list of each unexpired Government Bid of SRA or any of its Subsidiaries, which such list shall be complete and accurate as of the Company date thereof.
(b) Except as set forth in Section 5.19(b) or Section 5.8 of the SRA Disclosure Schedule, with respect to SRA and its Subsidiaries' Government Contracts and Government Bids, to the Knowledge of SRA, during the last three (3) years:
(i) SRA and each of its Subsidiaries have complied in all material respects with the material terms and conditions of each such Government Contract and Government Bid, including all clauses, provisions, specifications and requirements incorporated expressly by reference therein and any applicable Laws pertaining to any such Government Contract or Government Bid;
(ii) all representations, certifications, disclosures and warranties acknowledged or submitted by or on behalf of SRA or its Subsidiaries with respect to each such Government Contract or Government Bid were current, accurate and complete in all material respects as of the respective dates they were made and SRA and its Subsidiaries have complied in all material respects with the terms all such representations, certifications, disclosures and conditions warranty requirements;
(iii) all Cost or Pricing Data (as defined in FAR § 2.101), sales, pricing and discount information submitted in support of each Material Company Government a General Services Administration, Federal Supply Schedule proposal or Government-wide acquisition Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly other information submitted by reference SRA or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any in support of the negotiation of Government Contract Contracts or Company Bid were Government Bids, or modifications thereto, or in support of requests for payment thereunder, were, as of the date of price agreement, payment or submission current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects. Neither SRA nor any of its Subsidiaries has received any notice, as either written or, to the Knowledge of their effective date.SRA and any of its Subsidiaries, orally, of any alleged mischarging or other defective pricing in violation of the Truth in Negotiations Act or the cost principle set forth in the FAR (other than routine contract audits by U.S. Governmental Entities), and there are (x) no reports that have been issued resulting from any audits, reviews, surveys or other investigations conducted by the Defense Contract Audit Agency or other U.S. Governmental Entity of any of the Government Contracts (past or present) that conclude that SRA or its Subsidiaries engaged in overcharging, mischarging or defective pricing practices or in any other practice in violation of the FAR, and (y) no audits, reviews, surveys or investigations by U.S. Governmental Entities of any Government Contracts (past or present), which are either ongoing or have been completed but the report of which has not been issued (and is reasonably expected to be issued) and which may recommend cost disallowances, fines, penalties or other sanctions;
(civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company SRA or any of its Subsidiaries, Subsidiaries either in writing or, to the Knowledge of the CompanySRA and its Subsidiaries, orally, that the Company SRA or any of its Subsidiaries hashas or may have defaulted, breached or violated, or is alleged to havehave defaulted, breached or violated in any material respect violated, any Law, order representation, certification, disclosure, clausewarranty, provision clause provision, specification or requirement requirements pertaining to any such Government Contract or Company Government Bid.;
(dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company SRA nor any of its Subsidiaries has received terminated any written Government Contract, and SRA and its Subsidiaries have not been notified in writing or, to the Knowledge of SRA and its Subsidiaries, orally, by the CompanyU.S. Government or any prime contractor that any such Government Contract has been terminated for convenience, oral for default or for any reason (other than upon the expiration of its terms or in connection with the completion of the applicable services thereunder). No cure notice, show cause notice, deficiency, default or similar notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify is currently in any material respect its relationship with the Company or its Subsidiaries.effect; and
(evi) Since except for withholding by a U.S. Government customer under the Applicable Dateterms of a Government Contract, no material written money due to SRA and its Subsidiaries pertaining to any Government Contract has been withheld or offset nor has any claim been made in writing or, to the Knowledge of SRA and its Subsidiaries, orally to withhold or offset money, and SRA or its Subsidiaries is entitled to all progress payments received with respect thereto.
(c) Except as set forth in Section 5.19(c) of the CompanySRA Disclosure Schedule, oral claim neither SRA nor any of its Subsidiaries or any of their directors or officers, other employees or agents is or during the last three years has been under administrative, civil or criminal investigation, indictment or information by any U.S. Governmental Entity. There has not been, and there is not currently pending or threatened, any material audit, survey, review or investigation (other than routine audits) by any such claim that has been formally corrected or otherwise finally resolved with the applicable U.S. Governmental Entity, including with respect to any alleged or actual irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid that could reasonably be expected to give rise to: (i) liability under the federal False Claims Act or similar state statute; (ii) a claim for price adjustment under the Truth in Negotiations Act; or (iii) any request for a reduction in the price of any Government Contract. During the last three (3) years, neither SRA nor any of its Subsidiaries (i) has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid that could reasonably be expected to give rise to: (A) liability under the federal False Claims Act or similar state statute, (B) a claim for price adjustment under the Truth in Negotiations Act, or (C) any request for a reduction in the price of any Government Contract, or (ii) has made any disclosure under the FAR mandatory disclosure provisions to any Governmental Entity with respect to credible evidence of a violation of federal criminal law involving the fraud, conflict of interest, bribery or gratuity provisions found in Title 18 of the United States Code, a violation of the civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined a significant overpayment in connection with the award, performance or closeout of any Government Contract, and to the Knowledge of SRA and its Subsidiaries, there are no facts that would require mandatory disclosure under the state FAR.
(d) Except as set forth in Section 5.19(d) or federal Laws Section 5.8 of the United StatesSRA Disclosure Schedule, there are: (i) no material outstanding claims or requests for equitable adjustment against SRA or any of its Subsidiaries and a U.S. Governmental Entity arising under or relating to a Government Contract, and no prime contractor, subcontractor, vendor or other criminal Law third party has been made notified SRA or has been pending against the Company or any of its Subsidiaries in connection with writing, or to the Knowledge of SRA and its Subsidiaries, orally of any material claim or request for equitable adjustment arising under or relating to any Government Contract to which or Government Bid; and (ii) no material disputes between SRA and any of its Subsidiaries, on the Company one hand, and the U.S. Government or its Subsidiaries is a party.
(f) To any other Governmental Entity, on the Knowledge of other hand, under the CompanyContract Disputes Act, as of the date of this Agreement41 U.S.C. §§ 7101-7109, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 any other Law, or between the Company SRA or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Personthird party, on the other hand, arising under or relating to any Government Contract or Company Government Bid.
(ge) Since Except as set forth in Section 5.19(e) of the Applicable DateSRA Disclosure Schedule, neither SRA nor its Subsidiaries, or any of their directors or officers, is or during the Company nor last three (3) years has been suspended, debarred or proposed for suspension or debarment from participation in, or the award of, contracts or subcontracts for or with a Governmental Entity, and to the Knowledge of SRA and its Subsidiaries, no suspension or debarment actions with respect to Government Contracts have been commenced or threatened against SRA or any of its Subsidiaries has received in writing or any material adverse of their directors, officers or negative past performance evaluations employees. Additionally, to the Knowledge of SRA and its Subsidiaries, no facts or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since circumstances exist that would warrant the Applicable Date, (i) neither institution of suspension or debarment proceedings on the Company nor part of SRA or any of its Subsidiaries has been the subject or any of their directors, officers or employees, or a written finding of non-responsibility or ineligibility with respect to any outstanding Government Bid.
(f) No facts exist which would reasonably be expected to give rise to Liability under a claim for government contracting and fraud (iias such concept is defined under the state or federal laws of the United States) or for violation of the United States civil or criminal False Claims Act, the United States Procurement Integrity Act, or other similar Laws adopted by any other Governmental Entity, as applicable, in each case in connection with any Government Contract. To the Knowledge of SRA, neither the Company, SRA nor any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, .
(iig) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company Neither SRA nor any of its Subsidiaries has made received any written disclosure under past performance evaluations, ratings or reports including any rating less than “satisfactory” in connection with any Government Contract within the FAR mandatory disclosure or payment provisions past five (including, but not limited to, FAR 52.203-13(b)(3)5) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureyears.
(kh) The Company Except as set forth in Section 5.19(h) of the SRA Disclosure Schedule, and excluding claims for payment in the ordinary course of performance of any Government Contract, since the SRA Applicable Date, and to the Knowledge of SRA and its Subsidiaries (i) no material payment due to SRA or any of its Subsidiaries pertaining to a Government Contract has been withheld, recouped, or set-off, nor has any material claim been made to withhold, recoup or set-off any payment (except as may be required as a standard withholding in accordance with the payment or award fee terms of the applicable Government Contract); and their respective employees possess all facility (ii) none of the U.S. Government Contracts has incurred, or currently projects to incur, a material cost overrun at contract completion, in excess of any amount accrued in accordance with GAAP on SRA’s financial statements filed with the SEC, except in the case of clauses (i) and personnel security clearances (ii) above, for such withholdings, recoupment, set-offs and cost overruns that would not, individually or in the aggregate, constitute a SRA Material Adverse Effect. Neither SRA nor any of its Subsidiaries has any outstanding Government Bids that, if accepted or awarded, are reasonably expected to result in a loss.
(i) Neither SRA nor any of its Subsidiaries is using any intellectual property developed under any Government Contract without having obtained the necessary to perform all Material Company prior permission of the applicable Governmental Entity. All Intellectual Property delivered or used by SRA or its Subsidiaries in performance of a Government ContractsContract, including technical data, computer software, and all computer software documentation, other than third party computer software, has included the proper restrictive legends, such security clearances are valid as “Restricted Rights,” “Government Purpose Rights,” “Limited Rights” or “Special License Rights,” within the meaning of the FAR and in full force and effect. Since the Applicable DateDepartment of Defense FAR Supplement.
(j) Without giving effect to any organizational conflicts of interest that may arise as a result of the transactions contemplated under this Agreement, Section 5.19(j) of the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company SRA Disclosure Schedule identifies by Government Contract and all national security obligations applicable description, any work or future business opportunities from which, to the Company Knowledge of SRA and its Subsidiaries relating to the safeguarding Subsidiaries, SRA or any of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not is currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities bidding, due to express “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government ), Contract terms or provisions, except pursuant to existing or organizational conflicts of interest mitigation plans submitted by the Company SRA or any of its Subsidiaries in connection with any Material Company Government Contract Contract.
(k) SRA and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by Subsidiaries are in compliance in all material respects with all applicable national security obligations, including those specified NISPOM and requirements relating to mitigation of FOCI, and have all of the facility and personnel security clearances necessary to conduct the business of SRA and its Subsidiaries as currently being conducted in all material respects. SRA and its Subsidiaries hold and, at all relevant times since August 1, 2012 held, at least a “satisfactory” rating from the DSS with respect to all facility security clearances.
(l) Neither SRA nor any of its Subsidiaries, nor any director, manager, officer thereof (nor to the Knowledge of SRA and its Subsidiaries, any employee or Person acting for or on behalf of any of the foregoing), has for the last three (3) years (i) used any funds for unlawful contributions, gifts, gratuities, entertainment or other unlawful expenses related to political activity, (ii) made any payment or offered, promised or authorized the payment of anything of value to any government official or employee or any political party of candidate for political office for the purpose of influencing any act or decision of such official or of any Governmental Entity to obtain or retain business or direct business to any Person in violation of Law; (iii) made any other payment in violation of Law to any official of any Governmental Entity, including bribes, gratuities, kickbacks, lobbying expenditures, political contributions or contingent fee payments, or (iv) violated any applicable money laundering or anti-terrorism law or regulation, nor have any of them otherwise taken any action which would cause SRA or any of its Subsidiaries to be in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable law of similar Law)effect.
(m) To Except as set forth in Section 5.19(m) of the extent applicableSRA Disclosure Schedule, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company SRA and its Subsidiaries have not submitted made any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge assignment of the Company, no circumstances Government Contracts or of any interests in the outstanding Government Contracts. SRA and its Subsidiaries have existed since the Applicable Date that would have warranted such a reportnot entered into any financing arrangements with respect to any outstanding Government Contract.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Sciences Corp)
Government Contracts. (a) Since Schedule 4.18(a) of the Applicable Date, Disclosure Schedules lists each of the Government Contracts of the Company and its Subsidiaries have under which performance is ongoing that provides for receipt by the Company of more than $1,000,000 per year.
(b) Each Government Contract under which performance is ongoing is valid and binding on the Company or the applicable Subsidiary, as the case may be, and, to the Knowledge of the Company, the counterparties thereto, and is in full force and effect, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar Laws and principles of equity affecting creditors’ rights and remedies generally. The Company entered into each Government Contract under which performance is ongoing in the ordinary course of business consistent with past practice and, based upon assumptions that the Company believes to be reasonable and subject to such assumptions being fulfilled, should be capable of being performed in accordance with its terms and conditions without a loss. The Company has provided to the Buyer true and complete copies of each Government Contract of the Company and its Subsidiaries under which performance is ongoing that provides for receipt by the Company of more than $1,000,000 per year, as amended through the date hereof.
(c) Since August 1, 2006, with respect to each executory Government Contract (as defined below) or outstanding Bid to which the Company or any of its Subsidiaries is a party:
(i) the Company and each of its Subsidiaries has complied in all material respects with the all material terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company such Government Contract or Material Company Bid).;
(bii) Since neither the Applicable DateCompany nor any of its Subsidiaries, all representationsnor to the Knowledge of the Company any other party, certifications is in material breach, default or violation (and disclosures made no event has occurred or not occurred through the Company’s or any of its Subsidiaries’ action or inaction or, to the Knowledge of the Company, through the action or inaction of any third party, that with notice or the lapse of time or both would constitute a breach, default or violation) of any material term, condition or provision of any Government Contract to which the Company or any of its Subsidiaries is now a party, or by which any of them or any of their respective properties or assets may be bound;
(iii) the Company and each of its Subsidiaries has complied in all material respects with respect all material requirements of any statute, rule, regulation, order or agreement with the U.S. Government pertaining to any such Government Contract or Company Bid;
(iv) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract or Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective date., and the Company and each of its Subsidiaries has complied in all material respects with all such representations and certifications;
(cv) Since except as set forth in Schedule 4.18(c) of the Applicable Date through Disclosure Schedules, neither the date of this AgreementU.S. Government, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person, has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallywriting, that the Company or any of its Subsidiaries has, or is alleged to have, has materially breached or violated in any material respect any Lawstatute, representationrule, regulation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any Government Contract or Company Bid.requirement;
(dvi) To the Knowledge no termination notice has been issued, and no cure notice or show cause notice has been issued and not resolved or cured; and
(vii) none of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain ’s Government Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, was awarded pursuant to the Knowledge Small Business Innovative Research program or any small business set-aside program administered by the Small Business Administration or as a result of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) ’s “small business” or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a partypreferred status under applicable Law.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateNeither Parent, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orthe Subject Joint Venture nor, to the Knowledge of Parent, their respective managers, directors or officers, employees, consultants or agents, is or has been (i) debarred suspended or excluded from participation in or the Companyaward of any Government Contract; (ii) proposed for suspension, orally, that the Company or any of its Subsidiaries hasdebarment, or is alleged to have, breached exclusion from participation in or violated in the award of any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, or (iii) subject to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements)Government Contract.
(ib) As Each of the date of this AgreementParent, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, norSubject Joint Venture, to the Knowledge of the CompanyParent, has (i) complied with all material terms and conditions of its Government Contracts; (ii) complied with all material requirements of Law pertaining to its Government Contracts; (iii) ensured that all representations and certifications executed with respect to its Government Contracts were accurate and truthful in all material respects as of their effective date; and (iv) not violated, in any material respect, any consultants Law or agents contractual restriction associated with the employment of (or discussions concerning possible employment with) current or former officials or employees of a Governmental Entity, including but not limited to the Company or “revolving door” and “financial interest” restrictions set forth at 18 U.S.C. § 207 and § 208.
(c) Neither Parent nor any of its Subsidiaries or the Subject Joint Venture has (in each case in their capacity as such), is i) made any voluntary or has been under administrative, civil or criminal investigation, indictment or criminal information by mandatory disclosure to any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement unlawful conduct, misstatement, significant overpayment, or omission arising under or relating to any a Government Contract, ; (ii) received any written (or, to the Knowledge of Parent, oral) notice of any determination by a Governmental Entity regarding, nor entered into a consent order or administrative agreement, with a Governmental Entity regarding, any suspected, alleged, or possible fraud, defective pricing, mischarging, improper payments, unauthorized release of information, irregularity, misstatement, omission or violation of Law or regulation, or any administrative or contractual requirement related to a Government Contract; (iii) received any written (or, to the CompanyKnowledge of Parent, there is no current oral) notice of complaint (whether or outstanding not sealed or partially unsealed) regarding any suspected, alleged, or possible fraud, defective pricing, mischarging, improper payments, unauthorized release of information, irregularity, misstatement, omission or violation of law or regulation, or any administrative or contractual requirement related to a Government Contract; nor (iv) received subpoenas, search warrants, or civil investigative demand demands addressed to or subpoena issued to the Company requesting information involving Parent or any of its Subsidiariesmembers, nor managers, officers, employees, affiliates, consultants, agents, or representatives in connection with or concerning any of its or their respective directors, officers or employees information related to a Government Contract.
(in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iiid) neither the Company Neither Parent nor any of its Subsidiaries has made any written disclosure under or the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such Subject Joint Venture currently holds a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company classified Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and or performs under a Government Contract requiring access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Seadrill LTD)
Government Contracts. (a) Since During the Applicable Datelast six (6) years, neither the Company and nor any of its Subsidiaries have complied has (i) breached or violated in all any material respects respect any Government Contract; (ii) been audited, with the terms and conditions exception of each Material Company routine audits, or investigated by any Governmental Entity with respect to any Government Contract; (iii) conducted or initiated any internal investigation or made any disclosure with respect to any alleged or potential material irregularity, misstatement or omission arising under or relating to a Government Contract; (iv) received from any Governmental Entity or any other Person any written notice of breach, cure, show cause or default with respect to any Government Contract; (v) had any Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly terminated for cause or default by reference any Governmental Entity or by operation of Law therein any other Person for default or failure to perform; or (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”vi) and agency FAR supplement clauses been required to renegotiate in any Material Company material respect any Government Contract or Material Company Bid)Contract.
(b) Since During the Applicable Datelast six (6) years, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their respective principals (as defined at 48 C.F.R. § 2.101) have been suspended, debarred, or proposed for debarment by any Governmental Entity or otherwise excluded by any Governmental Entity from participating in any federal procurement or non-procurement programs and, to the Knowledge of the Company, no circumstances exist that would reasonably be expected to lead to the institution of suspension or debarment proceedings against the Company, any of its Subsidiaries, or any of their respective principals.
(c) With respect to each Government Contract and Government Bid, during the last six (6) years, all representations, certifications and disclosures made by the Company and each of its Subsidiaries with respect to any Government Contract or Company Bid were current, complete and accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective date, and the Company and each of its Subsidiaries has complied in all material respects with all such representations, certifications and disclosures.
(cd) Since During the Applicable Date through last six (6) years, none of the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company Company’s or any of its Subsidiaries, in writing or, to the Knowledge ’ Government Contracts were awarded as a small business set-aside or as a result of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidother preferential status.
(de) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither Neither the Company nor any of its Subsidiaries has received any written or, granted to the Knowledge of the Company, oral notice from any Governmental Entity pertaining any rights in or licenses to any Material Company Government Contract indicating its Intellectual Property that it intends to cancel or otherwise adversely modify in any material respect differ from its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, standard commercial licenses relating to the Knowledge use of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against Intellectual Property. All Intellectual Property delivered by the Company or its Subsidiaries in connection with any a Government Contract to which or Government Bid has been properly and sufficiently marked. No Intellectual Property used in any product or service of the Company or any of its Subsidiaries is was conceived or first actually reduced to practice in the performance of work under a partyGovernment Contract. During the last six (6) years, neither the Company nor its Subsidiaries has received any written performance evaluation containing a materially adverse or negative performance rating.
(f) To the Knowledge of the Company, as no actual or potential organizational conflict of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by interest would prevent the Company or any of its Subsidiaries pertaining to from fully performing any individual Company existing Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by from being awarded a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has as a result of any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employeespending Government Bid, nor, to the Knowledge of the CompanyCompany will arise solely as a result of the consummation of the transactions contemplated by this Agreement; provided, any consultants or agents however, the Company makes no representation as to the impact of Parent’s ownership of the Company post-Closing or the impact of any of Parent’s Affiliates.
(g) During the last six (6) years, the Company and its Subsidiaries have established and maintained in all material respects adequate internal controls for compliance with their respective Government Contracts. All invoices and claims for payment, reimbursement or adjustment submitted by the Company and its Subsidiaries were current, accurate and complete in all material respects as of their respective submission dates. There are no outstanding, anticipated, or contemplated material claims or disputes in connection with any of the Company’s or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Subsidiaries’ Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to Contracts. To the Knowledge of the Company, there is are no current outstanding or outstanding civil investigative demand unsettled allegations of fraud, false claims or subpoena issued overpayments nor any investigations or audits, with the exception of routine audits, by any Governmental Entity with regard to the Company or any of the Company’s or its Subsidiaries’ Government Contracts, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither has the Company nor any of its Subsidiaries has made Subsidiary taken any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed action that would have warranted such a disclosurereasonably be expected to give rise to liability for fraud, false claims or overpayments.
(kh) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company No Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted being performed by the Company or any Subsidiary as of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except has incurred or projects to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security incur material losses or similar Law)cost overruns.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither all of the Company Government Contracts were legally awarded, are binding on the parties thereto, and are in full force and effect.
(b) The Acquired Corporations and each of their employees are in compliance in all material respects with all terms and conditions of each Government Contract to which they are parties, and are performing in all material respects all obligations to be required to be performed by them thereunder.
(c) Neither any of the Acquired Corporations nor any of their respective current officers or directors or principals or employees (as defined in FAR 52.209-5) have been debarred or suspended from doing business with the United States Government or any of its Subsidiaries has, since agencies or any other Governmental Body (other than Governmental Bodies with whom the Applicable DateAcquired Corporations are prohibited from doing business pursuant to Legal Requirements), received written notice that any such suspension or is subject debarment action has been proposed, or otherwise excluded from participation in the award of any Government Contract, or for any reason listed on the List of Parties Excluded from Federal Procurement and Non-procurement Programs (available at xxx.xxxx.xxx). No circumstances exist to the Knowledge of the Company that would warrant the institution of suspension or debarment proceedings against the Company, any notice of termination its Subsidiaries, or any of their respective current officers or directors or principals or employees in connection with the performance of their duties for convenienceor on behalf of the Acquired Corporations.
(d) No show cause notices, notice notices of termination for default, stop work orderor cure notices have been issued relating to any Government Contract against any of the Acquired Corporations, material except as to any such cure notice or material show cause notice (excluding for this purpose ineligibility notices, those with respect to bid on certain Contracts due to generally applicable bidding requirements) (or, which cure has been made in the case ordinary course of Contracts governed by Laws other than business, and to the state or federal Laws Knowledge of the United StatesCompany no event, condition or omission has occurred or exists that have resulted in a termination for default of such Government Contract. Other than routine cost or pricing audits, none of the functional equivalents thereof, if any) pertaining Acquired Corporations is being audited as of the date hereof by any Governmental Body relating to any Material Company Government Contracts which audit has been found to result in noncompliance with a Government Contract, and, since .
(e) Neither any of the Applicable Date, no Governmental Entity has, Acquired Corporations nor (to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor ) any of its Subsidiaries has received any written ortheir respective officers or directors or principals (as defined in FAR 52.209-5) are currently, to the Knowledge and none of the Companyforegoing have been since January 1, oral notice from 2009, (i) charged with, received, or been advised in writing or orally of any Governmental Entity pertaining charge, investigation, claim, or assertion of, or indicted or convicted for, criminal activity with respect to any Material Company alleged material violation of a Government Contract indicating that it intends Contract, or (ii) had a civil judgment rendered against them with respect to cancel or otherwise adversely modify in any alleged material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge violation of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any a Government Contract to which the Company or its Subsidiaries is a partyContract.
(f) Since January 1, 2009, none of the Acquired Corporations has made any voluntary disclosure regarding material non-compliance relating to any material Government Contract that remains uncured or unresolved in any material respect.
(g) To the Knowledge of the Company, as none of the date of this Agreement, there exists no outstanding asserted disputes Acquired Corporations has taken any action or claims for an amount in excess of $25,000,000 between the Company or is a party to any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating litigation pertaining to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, that could reasonably be expected to give rise to: (i) neither liability under the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and False Claims Act, (ii) neither a claim for price adjustment under the CompanyTruth in Negotiations Act, any of its Subsidiaries nor any director or officer of (iii) a claim under the Company or its Subsidiaries has been debarred or suspendedContract Disputes Act, or to the Knowledge of the Company proposed (iv) any other request for a finding of debarment or suspension, from participation reduction in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance price of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since With respect to each Government Contract or Bid (in each case as defined below) to which the Applicable DateSeller is a party and which relates to the Business, to the Company and its Subsidiaries have Seller's Knowledge, (i) the Seller has fully complied in with all material respects with the terms and conditions and all applicable requirements of each Material Company Government Contract and Material Company Bid as requiredstatute, including all clausesrule, provisions and requirements incorporated expressly by reference regulation or by operation of Law therein order; (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”ii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have no notice has been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, received alleging that the Company Seller is in breach or violation of any of its Subsidiaries hasstatutory, regulatory or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
contractual requirement; (diii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any no written notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show show-cause notice has been received by the Seller; and (excluding for this purpose ineligibility to bid on certain Contracts iv) other than in the ordinary course of business, no money due to generally applicable bidding requirementsthe Seller has been (or has been threatened to be) withheld or set off.
(orb) Except as set forth on Schedule 4.19, in the case of Contracts governed by Laws other than the state or federal Laws none of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company Seller nor any of its Subsidiaries has received any written the Seller's directors or officers or, to the Knowledge of Seller's Knowledge, any employees, agents or consultants is (or for the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(elast three years has been) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitinformation, or any audit or, to by the Knowledge of the Company, investigation of the Company or any of its Subsidiaries U.S. Government with respect to any alleged material irregularity, misstatement or omission regarding a Government Contract or Bid relating to the Business; or (ii) suspended or debarred from doing business with the U.S. Government or declared nonresponsible or ineligible for government contracting. The Seller has not made, within the past three years, a voluntary disclosure under the Department of Defense Voluntary Disclosure Program to the U.S. Government with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) Contract or Bid relating to the Knowledge Business. To the Seller's Knowledge, there are no circumstances that would warrant Department of Defense suspension or debarment proceedings or the finding of nonresponsibility or ineligibility on the part of the CompanyBusiness.
(c) To the Seller's Knowledge, there neither the U.S. Government nor any prime contractor, subcontractor or vendor is no current asserting (or outstanding civil investigative demand during the last three years has asserted) in writing any claim or subpoena issued is initiating (or during the last three years has the Seller initiated) any dispute proceeding against the Seller relating to Government Contracts or Bids involving the Company or any of its SubsidiariesBusiness, nor is the Seller asserting (or during the last three years has the Seller asserted) any of its claim or their respective directors, officers is initiating (or employees (in each case in their capacity as such), under during the civil last three years has the Seller initiated) any dispute proceeding directly or criminal False Claims Act relating to indirectly against any such party concerning any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureBid.
(kd) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date For purposes of this Agreement (except to Section 4.19 the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To following terms shall have the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.meanings set forth below:
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Special Devices Inc /De)
Government Contracts. (a) Since Except as set forth on Section 5.14(a) of the Applicable DateParent Schedule, the Company with respect to each Government Contract of Parent: (i) each of Parent and its Subsidiaries have has complied in all material respects with the all material terms and conditions and all Applicable Laws; (ii) no written notice has been received by either Parent or any of each Material Company Government Contract and Material Company Bid as requiredits Subsidiaries (and, including all clausesto the Knowledge of Parent, provisions and requirements incorporated expressly by reference none has been threatened) alleging that the Parent, any of its Subsidiaries, or by operation any director, officer or employee of Parent or any of its Subsidiaries, is in material breach or violation of any Applicable Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standardsor contractual requirement thereunder; and applicable and material Federal Acquisition Regulation (“FAR”), Department iii) no written notice of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in termination has been received by Parent or any Material Company Government Contract or Material Company Bid)of its Subsidiaries thereunder.
(b) Since Except as set forth in Section 5.14(b) of the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this AgreementParent Schedule, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor vendor has notified the Company or any of its Subsidiaries, asserted in writing or, to the Knowledge of the Company, orally, that the Company any material claim or initiated any material dispute proceeding against Parent or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining relating to any Government Contract of Parent or Company Government Bid of Parent, nor is Parent or any of its Subsidiaries asserting any material claim or initiating any material dispute proceeding directly or indirectly concerning any such Government Contract or Government Bid.
(dc) To the Knowledge With respect to each Government Contract of Parent and Government Bid of Parent, except as set forth in Section 5.14(c) of the CompanyParent Schedule:
(i) there are no assignments of revenues or anticipated revenues pursuant to the federal Assignment of Claims Act, neither the Company nor 31 U.S.C. § 3727;
(ii) all written representations and certifications submitted by Parent or any of its Subsidiaries hasin order to induce the award of a Government Contract or to induce payments under a Government Contract were current, since the Applicable Date, received or is subject to any notice accurate and complete in all respects as of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice their respective effective dates;
(excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsiii) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of Parent, all material pricing discounts have been properly reported to and credited to the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of customer;
(iv) Parent and its Subsidiaries has received any written or, have maintained systems of internal controls that are and have been in material compliance with all requirements of such Government Contracts and Applicable Law;
(v) to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the CompanyParent, as of the date hereof, Parent and its Subsidiaries fully expect and intend to fully perform all of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of obligations under (and Parent and its Subsidiaries, on the one hand, and either the applicable Subsidiaries have all material Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating authorizations and all material third-party certifications and approvals required in order to any perform) each such Government Contract or Company Bid.Contract;
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (ivi) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company Parent nor any of its Subsidiaries, nor any of their respective partners, principals or officers (nor, to the Knowledge of Parent, any of its or its Subsidiaries’ employees, agents or consultants) have possessed or have accessed confidential or non-public information to which they were not lawfully entitled; and
(vii) Parent and each of its Subsidiaries and, to the Knowledge of Parent, each of their respective directors, officers or employeesdirectors is in compliance with Applicable Laws and other administrative and contractual restrictions associated with the employment of (or discussions concerning possible employment with) current or former officials or employees of a Governmental Entity (regardless of the branch of government), in each case, in all respects material to Parent and its Subsidiaries taken as a whole.
(d) Except as set forth in Section 5.14(d) of the Parent Schedule, with respect to each Government Contract of Parent and Government Bid of Parent, neither Parent nor any of its Subsidiaries, nor, to the Knowledge of the CompanyParent, any consultants of their respective corporate directors or agents officers (i) is or during the past five (5) years has been under investigation, indictment or audit by, any Governmental Entity, nor (ii) has conducted or initiated any investigation or made any disclosure to a Governmental Entity with respect to any alleged irregularity, misstatement or non-compliance, other than, in each of the Company cases in clause (i) or (ii), for routine audits or non-material disclosures.
(e) Neither Parent nor any of its Subsidiaries, nor, to the Knowledge of Parent, any of their respective shareholders, officers or directors, is or within the past three (3) years has been debarred, suspended or deemed non-responsible or otherwise formally excluded from participation in the award of a Government Contract of any Person, nor is there any pending debarment, suspension or exclusion proceeding that has been initiated against Parent or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the CompanyParent, investigation any of the Company their predecessors, shareholders, officers or directors.
(f) Neither Parent nor any of its Subsidiaries, nor, to the Knowledge of Parent, any of their respective officers or directors, have (i) used any funds of Parent or its Subsidiaries with respect to offer or provide any alleged material irregularityunlawful contribution, misstatement payment, kickback, bribe, gift, gratuity or omission arising under entertainment, or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or Parent made any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act unlawful expenditures relating to any Government Contract and (iii) neither the Company political activity. Neither Parent nor any of its Subsidiaries has made received written (or, to the Knowledge of Parent, oral) notice of any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental EntityUnlawful Payment, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company Parent and its Subsidiaries have complied in all material respects with all security obligations incorporated in adequate financial controls to detect and prevent any Material Company Government Contract and all national security obligations applicable to the Company such Unlawful Payments. Parent and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified have been in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting compliance in all material respects and have, during all periods for which any applicable statute of limitations has not expired, complied with the applicable provisions of the U.S. Foreign Corrupt Practices Act, as amended, and other foreign Applicable Laws relating to corrupt practices and similar matters.
(iig) since Section 5.14(g) of the Applicable DateParent Schedule sets forth as of the date hereof a current, complete and accurate list of all of Government Contracts of Parent that are currently active in performance. Unless listed on Section 5.14(g) of the Company Parent Schedule as being “closed,” each Government Contract of Parent listed on Section 5.14(g) of the Parent Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or similar laws relating to or affecting the rights and remedies of creditors and by general principles of equity regardless of whether considered in a proceeding in equity or law. No Government Contract of Parent listed on Section 5.14(g) of the Parent Schedule was awarded on the basis of a Preferred Bidder Status. Parent has made available to Parent complete and correct copies of those Government Contracts of Parent listed on Section 5.14(g) of the Parent Schedule, together with all draft or final audit reports from a Governmental Entity or other customer as received by Parent pertaining to such Government Contracts.
(h) Section 5.14(h) of the Parent Schedule sets forth as of the date set forth in such schedule (or if not indicated as of the date hereof) a current, accurate and complete list of each of the Government Bids which Parent or its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(ca Governmental Entity (or a prime contractor) for which no notice of award decision has been received by Parent or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Perini Corp)
Government Contracts. (a) Since With respect to each and every Government Contract or bid to obtain a Government Contract to which Seller is a party, and which relates to the Applicable DateBusiness, the Company and its Subsidiaries have except as set forth in Schedule 3.22(a): (i) Seller has fully complied in with all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company such Government Contract or Material Company Bid).
bid for a Government Contract as required; (bii) Since the Applicable DateSeller has fully complied with all material requirements of statute, rule or regulation pertaining to such Government Contract or bid for a Government Contract; (iii) all representations, representations and certifications and disclosures made by the Company and its Subsidiaries executed with respect to any such Government Contract or Company Bid were current, to Seller's Knowledge accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all every material respects, respect as of their effective date.
date and Seller to Seller's Knowledge has fully complied with all such representations and certifications in every material respect; and (civ) Since no termination for default, cure notice or show cause notice has been issued or, to Seller's Knowledge will be issued, (v) neither the Applicable Date through the date of this Agreement, no Governmental Entity U.S. Government nor any non-U.S. government nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, Seller that the Company or any of its Subsidiaries has, or is alleged to have, Seller has breached or violated in any material respect any Law, representationLegal Requirement, certification, disclosurerepresentation, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
bid; (dvi) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed no cost incurred by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) Seller pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that bid has been formally corrected questioned or otherwise finally resolved with challenged, is the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws subject of the United States) or other criminal Law has been made any investigation or has been pending against disallowed by the Company or its Subsidiaries in connection with any U.S. Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating non-U.S. government; (vii) no money due to any Seller pertaining to such Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made off and Seller is entitled to withhold or set off money, all progress payments with respect thereto and (viii) each Government Contract is valid and in each case, in an amount in excess of $10,000,000full force and effect.
(jb) Since To Seller's Knowledge, except as set forth in Schedule 3.22(b), with respect to the Applicable DateBusiness, (i) neither the Company nor any none of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to Authority, (ii) there is not any pending audit or investigation by Seller nor within the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or last three years has there been any audit or, to the Knowledge of the Company, or investigation of the Company or any of its Subsidiaries by Seller resulting in a material adverse finding with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government ContractContract or bid, and (iiiii) during the last three years, Seller has not made a voluntary disclosure to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company U.S. Government or any of its Subsidiariesnon-U.S. government with respect to any alleged irregularity, nor any of its misstatement or their respective directors, officers omission arising under or employees (relating to a Government Contract or bid. Except as set forth in each case in their capacity as suchSchedule 3.22(b), to Seller's Knowledge there are no irregularities, misstatements or omissions arising under the civil or criminal False Claims Act relating to any Government Contract or bid that has led or is expected to lead, either before or after the Closing Date, to any of the consequences set forth in clause (i) or (ii) of the immediately preceding sentence or any other material damage, penalty assessment, recoupment of payment or disallowance of cost.
(c) Except as set forth in Schedule 3.22(c), with respect to the Business, there exist (i) no outstanding claims against Seller, either by the U.S. Government or by any non-U.S. government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract or bid referred to in Section 3.22(a) and (iiiii) no disputes between Seller and the U.S. Government or any non-U.S. government under (A) the Contract Disputes Act or any other Federal statute or (B) any analogous statute of any jurisdiction other than the United States or between Seller and any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract or bid. Except as set forth in Schedule 3.22(c), to Seller's Knowledge there are no facts that could reasonably be expected to result in a claim or a dispute under clause (i) or (ii) of the immediately preceding sentence.
(d) Except as set forth in Schedule 3.22(d), neither the Company Seller nor any of its Subsidiaries employees, consultants or agents is (or during the last three years has made been) suspended or debarred from doing business with the U.S. Government or any written disclosure under non-U.S. government or is (or during such period was) the FAR mandatory disclosure subject of a finding of nonresponsibility or payment provisions (includingineligibility for U.S. Government or non-U.S. government contracting. Except as set forth in Schedule 3.22(d), but not limited to, FAR 52.203-13(b)(3)) Seller and its Affiliates have operated the Business in compliance with all requirements of all material laws pertaining to any Governmental Entity, all Government Contracts and no circumstances have existed that would have warranted such a disclosurebids.
(ke) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as set forth in Schedule 3.22(e), and all such security clearances are valid and in full force and effect. Since the Applicable Dateno statement, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated representation or warranty made by Seller in any Material Company Government Contract and all national security obligations applicable Contract, any exhibit thereto or in any certificate, statement, list, schedule or other document submitted or furnished to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company U.S. Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries non-U.S. government in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, bid (i) contained on the Company and its Subsidiaries comply with DFARS 252.204-7012date so furnished or submitted any untrue statement of a material fact, Safeguarding Covered Defense Information and Cyber Incident Reporting or failed to state a material fact necessary to make the statements contained therein, in all light of the circumstances in which they were made, not misleading or (ii) contains on the date hereof any untrue statement of a material respects fact, or fails to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading, except in the case of both clauses (i) and (ii) since the Applicable Date, the Company and its Subsidiaries have any untrue statement or failure to state a material fact that would not submitted result in any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, material liability to the Knowledge Business as a result of the Company, no circumstances have existed since the Applicable Date that would have warranted such untrue statement or failure a reportmaterial fact.
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, the The Company and each of its Subsidiaries have has in the last five (5) years complied in all material respects with the all terms and conditions of of, and all Laws relating to, each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited toGovernment Bid, and as may be applicablethe Company or each of its Subsidiaries has not received written, or to the Truthful Cost Company’s knowledge, oral, notice from any Governmental Body or any prime contractor or subcontractor asserting that the Company and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”)any of its Subsidiaries has breached or violated any Law, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in certification, representation, clause, provision or requirement relating to any Material Company such Government Contract or Material Government Bid. The Company Bid).
(b) Since the Applicable Date, and each of its Subsidiaries maintains reasonable internal controls for compliance in all representations, certifications material respects with all Government Contracts and disclosures made Government Bids and all invoices or other demands for payment submitted by or on behalf of the Company and its Subsidiaries with respect or Subsidiary pursuant to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective date.
(c) Since respective submission dates. Neither the Applicable Date through the date of this Agreement, no Governmental Entity Company nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or : (a) violated in any material respect any Law, representation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any Government Contract or Company Government Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing any material respect; (b) received written notice of being suspended or debarred from bidding on government contracts by a Governmental Entity and in an amount in excess of $10,000,000Body; (c) been audited or investigated by any Governmental Body with respect to any Government Contract or Government Bid, which costs have not been reserved, reflected except audits or investigations undertaken by Governmental Bodies in the consolidated financial statements Ordinary Course of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off moneyBusiness, in each case, in when determining whether to enter into an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of agreement or pursuant to its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been rights under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, ; (d) to the Knowledge of the Company’s knowledge, conducted or initiated any internal investigation of the Company or made a voluntary or mandatory disclosure to any of its Subsidiaries Governmental Body or other customer or prime contractor or higher-tier subcontractor with respect to any alleged material or potential irregularity, misstatement or omission arising under or relating to a Government Contract; (e) received from any Governmental Body or other customer or prime contractor or higher-tier subcontractor any written, or to the Company’s knowledge, oral, notice of breach, cure or default with respect to any Government Contract, ; (iif) to the Knowledge Company’s knowledge, received any government contract on the basis of the Company, there is no current ’s qualification as a small business or outstanding civil investigative demand other preferred bidder status; or subpoena issued (g) to the Company’s knowledge, had any Government Contract terminated by any Governmental Body or other customer or prime contractor or higher-tier subcontractor for default or failure to perform in accordance with applicable standards. Neither the Products nor the Company or any of its Subsidiaries, Software nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure Intellectual Property owned or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) purposed to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted be owned by the Company or any of its Subsidiaries in connection has been developed with funding from a Governmental Body nor has any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting Software or Products been delivered under any license providing a Governmental Body greater than a restricted rights license as defined in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) 48 C.F.R. 27.401 or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report’s customary commercial software license.
Appears in 1 contract
Government Contracts. (a) Since In connection with the Applicable Date, business of the Company and its Subsidiaries:
(a) With respect to each Government Contract and Government Subcontract, since January 1, 2004, (i) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Subcontract, including all clauses, provisions and requirements incorporated expressly expressly, by reference reference, or by operation of Law therein therein; (ii) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all applicable Laws or agreements pertaining to such Government Contract or Government Subcontract, including, but not limited to, and as may be where applicable, the Truthful Cost Truth in Negotiations Act and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Company’s Cost Accounting StandardsStandards disclosure statement, if any; (iii) all representations and applicable and material Federal Acquisition Regulation (“FAR”)certifications executed, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications Government Subcontract were complete and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
date and each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all such representations and certifications; (civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity Authority nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company Company, its Subsidiaries or any of its Subsidiariestheir respective Affiliates, either in writing or, or to the Knowledge of the Company, orally, that the Company Company, its Subsidiaries or any of its Subsidiaries has, or is alleged to have, such Affiliate has breached or violated in any material respect any Law, representationenactment, certification, disclosureregulation, representation, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
Government Subcontract; (dv) To no termination for convenience, termination for default, cure notice, show cause notice, or stop work order is currently in effect pertaining to such Government Contract or Government Subcontract; (vi) to the Knowledge of the Company, neither no claim for costs incurred by the Company, its Subsidiaries or any of their respective Affiliates pertaining to such Government Contract or Government Subcontract has been challenged in writing, is the subject of any investigation (other than in connection with a routine audit) or has been disallowed by any Governmental Authority and (vii) no money due to the Company nor or any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to such Government Contract or Government Subcontract has been withheld, reduced or set off nor has any Material Company Government Contract, claim been made to withhold or set off money and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor and its Subsidiaries are entitled to all progress payments received with respect thereto.
(b) None of the Company, its Subsidiaries or any of its Subsidiaries has received any written ortheir respective Affiliates nor, to the Knowledge of the Company, oral any of their respective directors, officers, employees, consultants or agents is, or since January 1, 2004 has been, under or received any notice from of any planned or threatened administrative, civil or criminal investigation, indictment or information by any Governmental Entity pertaining Authority or any audit or investigation by the Company, its Subsidiaries or any of their respective Affiliates with respect to any Material Company alleged act or omission arising under or relating to any Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable DateGovernment Subcontract and since January 1, no material written or2004, to the Knowledge none of the Company, oral claim its Subsidiaries or any of their respective Affiliates has conducted or initiated any internal investigation (other than any such claim an informal investigation that has been formally corrected or otherwise finally was resolved with without the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United Statesneed for further action) or other criminal made a voluntary disclosure to any Governmental Authority with respect to any actual or suspected violation of Law has been made arising under or has been pending against the Company or its Subsidiaries in connection with any relating to a Government Contract to which the Company or its Subsidiaries is a partyGovernment Subcontract.
(fc) To the Knowledge of There are (i) no outstanding claims against the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company its Subsidiaries or any of its Subsidiariestheir respective Affiliates, on the one hand, and either the applicable by any Governmental Entity Authority or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract or Government Subcontract and (ii) no disputes between the Company, its Subsidiaries or their respective Affiliates, on the one hand, and the United States government, on the other hand, under the Contract Disputes Act or any other U.S. federal statute or between the Company, its Subsidiaries and their respective Affiliates, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract or Company BidGovernment Subcontract. None of the Company, its Subsidiaries and their respective Affiliates has any direct financial interest in any pending or potential claim against any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract.
(gd) Since the Applicable DateJanuary 1, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date2004, (i) neither the Company nor any none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, its Subsidiaries or any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries their respective Affiliates has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, suspended from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Authority; (ii) to the Knowledge of the Company, there is exist no current facts or outstanding civil investigative demand circumstances that would warrant the institution of suspension or subpoena issued to debarment proceedings or the Company finding of nonresponsibility or ineligibility on the part of the Company, its Subsidiaries or any of their respective Affiliates, or any director, officer or employee of the Company, its Subsidiaries or any of their respective Affiliates and (iii) the Company’s and its Subsidiaries’ cost accounting and procurement systems and the associated entries reflected in the Company’s financial statements included in the Filed Company SEC Reports with respect to the Government Contracts and Government Subcontracts have been in compliance in all material respects with applicable Laws.
(e) Since January 1, nor 2004, (i) all test and inspection results provided by the Company, its Subsidiaries or any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating Affiliates to any Governmental Authority pursuant to any Government Contract and (iii) neither or Government Subcontract or to any other Person pursuant to a Government Contract or Government Subcontract or as a part of the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) delivery to any Governmental EntityAuthority or other Person pursuant to a Government Contract or Government Subcontract of any article designed, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and engineered, manufactured or repaired by the Company, its Subsidiaries and or any of their respective employees possess Affiliates were complete and correct in all facility material respects as of the date so provided and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, (ii) the Company and its Subsidiaries have complied in provided all material respects with all security obligations incorporated in test and inspection results to any Material Company Governmental Authority or to any other Person pursuant to a Government Contract or Government Subcontract as required by applicable Laws and all national security obligations the terms of the applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Government Contract or Government Subcontract.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(mf) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no statement, representation or warranty made by the Company, its Subsidiaries or any of their respective Affiliates to any Governmental Authority in connection with any Government Contract or Government Subcontract or to another party where the ultimate contracting party is a Governmental Authority contained on the date so furnished or submitted any untrue statement of material fact, or failed to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
(g) None of the Company, its Subsidiaries or any of their respective Affiliates is in possession of any material property owned by any Governmental Authority, including material, tooling and test equipment, provided under, necessary to perform the obligations under or for which the Surviving Corporation could be held accountable under the Government Contracts and the Government Subcontracts.
(h) Each Government Contract and Government Subcontract was entered into in the ordinary course of business consistent with past practice.
(i) For purposes of this Agreement, the following terms shall have existed since the Applicable Date that would have warranted such a report.definitions set forth below:
Appears in 1 contract
Government Contracts. (a) Since Except as set forth in Sections 2.07(b) and 2.09 of the Applicable DateSeller Disclosure Letter, the Company since January 1, 2012, (i) Seller and its Subsidiaries have complied in all material respects with all applicable requirements of the terms and conditions of each Material Company U.S. Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicableCost Accounting Standards, the Truthful Cost and Pricing Data Federal Truth in Negotiations Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; , the Procurement Integrity Act; , the Cost Accounting Standards; False Claims Act, Executive Order No. 11246 of 1965, Section 503 of the Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and any other laws, rules, regulations or orders applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were currentGovernment Bid, accurate (ii) to Seller’s knowledge, there is no pending claim for, and complete at Seller has not made a determination that there is credible evidence of fraud (as such concept is defined under the time Laws of disclosure (or have been formally corrected or otherwise finally resolved the United States) in connection with a Governmental Entity), any Government Contract in each case, in all material respects, as respect of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity Business and neither any Government Authority nor any prime contractor contractor, subcontractor or subcontractor other Person or entity has notified the Company Seller or any of its Subsidiaries, in writing or, to the Knowledge member of the Company, orallySeller Group in writing, that Seller or such member of the Company or any of its Subsidiaries has, or is alleged to have, Seller Group has breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement Law pertaining to any Government Contract or Company Bid.
(d) To the Knowledge Government Bid in respect of the CompanyBusiness, neither (iii) none of Seller or any member of the Company nor Seller Group has made any of its Subsidiaries has, since the Applicable Date, received voluntary or is subject mandatory disclosure to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility Government Authority with respect to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company a Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge and (iv) none of Seller or any member of Seller Group has received notice of any material (A) outstanding claims in respect of the Company, threatened Business arising under or relating to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company by any Government Authority or its Subsidiaries is a party.
prime contractor, subcontractor or other Person or (fB) To the Knowledge outstanding claims or requests for equitable adjustment or disputes in respect of the Company, as Business between Seller or any member of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its SubsidiariesSeller Group, on the one hand, and either the applicable Governmental Entity United States government or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Government Bid.
(gb) Since Neither Seller or any other member of the Applicable DateSeller Group (in each case solely with respect to the Business) is or since January 1, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries 2012 has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company debarred, proposed for a finding of debarment or suspensionotherwise excluded from participation, from participation as a contractor or subcontractor, in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by from a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000Authority.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Transaction Agreement (Equinix Inc)
Government Contracts. (a) Since Except for the Applicable DateRolls Royce T-56 Engine Parts Contract, the Company has no material Government Contracts.
(b) Except as set forth in Schedule 4.21, (i) each of the Company and its Subsidiaries have is in compliance, and has complied, in all material respects during the past three years with all requirements of any statute, law, rule or regulation pertaining to its Government Contracts; (ii) all representations and certifications made by each of the Company and its Subsidiaries during the past three years with respect to such Government Contracts were accurate in all material respects as of their effective date, and each of the Company and its Subsidiaries has fully complied in all material respects with the terms such representations and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited tocertifications, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”iii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orhereof, to the Knowledge of the Company, orallyno termination or default, that the Company cure notice or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidshow cause notice has been issued and remains unresolved.
(dc) To the Knowledge of the CompanyExcept as set forth in Schedule 4.21, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject (i) to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under any administrative, civil or criminal investigation, investigation or indictment or criminal information by any Governmental Entity with respect to the award or performance conduct of any Government Contractthe business of each of the Company and its Subsidiaries, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, (ii) to the Knowledge of the Company, there is no pending material U.S. governmental investigation of the Company or any of its Subsidiaries Subsidiaries, or any of their respective officers, employees, consultants or agents, nor has there been any material U.S. governmental investigation of the Company or any of its Subsidiaries, or any of their respective officers, employees, consultants or agents resulting in any material adverse finding with respect to any material alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) during the last three years, neither the Company nor any of its Subsidiaries has made any written voluntary disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) in writing to any Governmental EntityEntity with respect to any material alleged irregularity, and no circumstances have existed that would have warranted such a disclosuremisstatement or omission arising under or relating to any Government Contract.
(kd) Except as set forth in Schedule 4.21, as of the date of this Agreement, there are no outstanding written material claims that have been asserted against the Company, or any of its Subsidiaries, by any Governmental Entity or by any prime contractor, subcontractor, vendor or other third party arising under or relating to any Government Contract to which the Company or any of its Subsidiaries is a party.
(e) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary are not subject to perform all Material Company the United States Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, cost accounting rules.
(f) Each of the Company and its Subsidiaries have complied is in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including including, without limitation, those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
DOD 5220.22-M (l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar LawJanuary 1995).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, Neither the Company nor any Subsidiary has received notice of any claim, suit or investigation asserting or alleging the commission of criminal acts or bribery by either the Company or any Subsidiary with respect to any contract between the Company or any Subsidiary and its Subsidiaries have complied the United States government or a department or agency thereof (a "Government Contract"). Neither the Company nor any Subsidiary has been debarred or suspended from participation in all material respects the award of contracts with the terms United States government or any agency or department thereof (it being understood that debarment and conditions suspension does not include ineligibility to bid for certain contracts due to generally applicable bidding requirements). Neither the Company or any Subsidiary has received written notice of each Material any kind from the United States government or any agency or department thereof alleging any violation, or notifying the Company or any Subsidiary of any investigation of a possible violation, of any applicable law, rule, or regulation of the Company or any Subsidiary or any act for which the Company or any Subsidiary could be debarred or suspended from contracting with any agency of any government, or prohibiting or seeking to prohibit the Company or any Subsidiary from conducting, or restricting or seeking to restrict the Company's or any Subsidiary's ability to conduct, all or any part of its business or operations or from contracting with any government. No payment has been made by the Company or any Subsidiary, or, to the best knowledge of the Company or any Subsidiary, by any person acting on its or their behalf, to any person in connection with any Government Contract in violation of applicable procurement laws or regulations or in violation of (or requiring disclosure pursuant to) the Foreign Corrupt Practices Act. The cost accounting and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made purchasing systems maintained by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate Contracts are in compliance with all applicable United States government Laws and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, regulations in all material respects, as . The Disclosure Schedule identifies the current reasonable best estimate of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any "cost to complete" of its Subsidiaries has, or is alleged to have, breached or violated in any each material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim firm fixed price contract (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entitycontracts on an indefinite delivery/indefinite quantity basis) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract pursuant to which the Company or its Subsidiaries any Subsidiary is a party.
(f) To required to perform services and/or deliver products and the Knowledge Company's current reasonable best estimate of the Company, as aggregate amount of the date payments to be received under each such contract. None of this Agreement, there exists no outstanding asserted disputes such contracts has accrued or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred is expected by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated result in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117losses.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Tracor Inc /De)
Government Contracts. (a) Since Section 5.19(a) of the Applicable DateArgon Disclosure Schedule sets forth a true and correct list of each Government Contract which is in effect as of the date hereof (including each Government Contract with a total contract value exceeding $100,000 which has been fully performed but has not yet been closed out) to which Argon or any of its Subsidiaries is a party (the “Argon Government Contracts”) and each Government Bid to which Argon or any of its Subsidiaries is a party and for which an award has not been issued 30 days or more prior to the date of this Agreement (the “Argon Government Bids”). With respect to each such Argon Government Contract and Argon Government Bid, Section 5.19(a) of the Company Argon Disclosure Schedule shall list (i) the Argon internal job number, (ii) a description of such Contract or Bid and (iii) the total contract value or total estimated contract value.
(b) Except as set forth in Section 5.19(b) of the Argon Disclosure Schedule: (A) Argon and its Subsidiaries have complied, in all material respects, with the terms and conditions of each Argon Government Contract and Argon Government Bid; (B) Argon and its Subsidiaries have complied in all material respects respects, with the terms and conditions requirements of each Material Company Government Contract and Material Company Bid as requiredany statute, including all clausesrule, provisions and requirements incorporated expressly by reference regulation or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in policy pertaining to any Material Company such Argon Government Contract or Material Company Argon Government Bid).
; (bC) Since the Applicable Date, all representations, representations and certifications and disclosures made by the Company and Argon or any of its Subsidiaries with respect to any such Argon Government Contract or Company Argon Government Bid were current, accurate in every material respect as of their effective date and complete at the time of disclosure (or Argon and its Subsidiaries have been formally corrected or otherwise finally resolved fully complied with a Governmental Entity), in each case, all such representations and certifications in all material respects; and (D) no termination or default, as cure notice, show cause notice, suspension of their effective datework notice or stop work order has been issued and remains unresolved with respect to any such Argon Government Contract or Argon Government Bid.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, Except as set forth in writing or, to the Knowledge Section 5.19(c) of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
Argon Disclosure Schedule: (d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (iA) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility Argon or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the their respective directors, officers or officers, employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last five years has been been) under administrative, civil or criminal investigation, investigation or indictment or criminal information by any Governmental Entity with respect to the award or performance conduct of any Government Contract, the subject business of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, Argon or any audit or, of its Subsidiaries; (B) to the Knowledge knowledge of the CompanyArgon, there is no pending audit or investigation of the Company Argon or any of its Subsidiaries or any of their respective officers, employees or representatives, nor within the last five years has there been any audit or investigation of Argon or any of its Subsidiaries or any of their respective officers, employees or representatives, with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current Contract or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract Bid; and (iiiC) during the last five years, neither the Company Argon nor any of its Subsidiaries has made any written voluntary disclosure in writing to any other Governmental Entity with respect to any material alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid.
(d) Except as set forth in Section 5.19(d) of the FAR mandatory disclosure Argon Disclosure Schedule, there are (A) no outstanding material claims or payment provisions requests for equitable adjustments against Argon or any of its Subsidiaries, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other third party arising under or relating to any Argon Government Contract or Argon Government Bid, and (includingB) no outstanding material claims, but not limited torequests for equitable adjustments or disputes between Argon or any of its Subsidiaries, FAR 52.203-13(b)(3)) to on the one hand, and any Governmental Entity, on the other hand, under the Contract Disputes Act or any other federal statute or between Argon or any of its Subsidiaries, on the one hand, and no circumstances have existed that would have warranted any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any such a disclosureArgon Government Contract or Argon Government Bid.
(ke) The Company Except as set forth in Section 5.19(e) of the Argon Disclosure Schedule, the Argon Government Contracts are not the subject of bid or award protest proceedings, and, to the knowledge of Argon, no Argon Government Contract is reasonably likely to become the subject of bid or award protest proceedings.
(f) No Person has notified Argon or any of its Subsidiaries that any Governmental Entity intends to seek Argon’s agreement to lower rates under any Argon Government Contract or Argon Government Bid.
(g) Neither Argon nor any of its Subsidiaries has ever been, nor is now, suspended, debarred or otherwise ineligible or proposed for suspension or debarment from bidding on any Government Contract. No suspension or debarment actions with respect to Government Contracts have been commenced or to the knowledge of Argon, threatened against Argon or any of its officers or employees.
(h) No negative determination of responsibility has been issued against Argon or any of its Subsidiaries during the past three (3) years with respect to any quotation, bid or proposal for a Government Contract.
(i) Except as set forth on Section 5.19(i) of the Argon Disclosure Schedule, to the knowledge of Argon since January 1, 1998, neither Argon nor any of its Subsidiaries has undergone and is not undergoing any audit, inspection, survey or examination of records by any Governmental Entity including but not limited to the General Accounting Office, the DCAA, any state or federal agency Inspector General, the contracting officer with respect to any Government Contract or the Department of Justice (including the United States Attorney General) relating to any Government Contract.
(j) Argon and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including including, without limitation, those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
DOD 5220.22-M (l) The Company and its Subsidiaries are not currently limitedJanuary 1995). To the knowledge of Argon, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or neither Argon nor any of its Subsidiaries in connection has, within the last five (5) years, received any invalidation of a facility clearance or other adverse action of a Governmental Entity with respect to any Material Company Government Contract and made available facility clearance or any adverse determination with respect to Parent personal security clearances for officers or its outside legal counsel prior to the date directors of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Argon.
(mk) To the extent applicable, (i) the Company and Neither Argon nor any of its Subsidiaries comply has knowledge of any claim, potential claim or potential liability for defective pricing, false statements or false claims with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted respect to any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reporttheir Government Contracts.
Appears in 1 contract
Samples: Merger Agreement (Sensytech Inc)
Government Contracts. (a) Since December 31, 2011, and except as has not had and would not be reasonably likely to have, individually or in the Applicable Dateaggregate, the Company and an Acquiror Material Adverse Effect, with respect to each prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, blanket purchase agreement, letter agreement, purchase order, delivery order, task order, grant, cooperative agreement, bid, change order or other commitment or funding vehicle between Acquiror or any of its Subsidiaries have and (i) a Governmental Entity, (ii) any Government Prime Contractor or (iii) any Government Subcontractor, (A) Acquiror and each of its Subsidiaries has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredContracts, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein, (including, but not limited to, B) Acquiror and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department each of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries has complied with respect all material requirements of applicable Law pertaining to any such Government Contract Contracts, (C) all representations and certifications executed, acknowledged or Company Bid set forth in or pertaining to such Government Contracts were current, accurate complied with and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
, and Acquiror and each of its Subsidiaries has complied in all material respects with all such representations and certifications, (cD) Since neither the Applicable Date through the date of this Agreement, no Governmental Entity United States Government nor any prime contractor Government Prime Contractor or subcontractor Government Subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company Acquiror or any of its Subsidiaries hasin writing that Acquiror or such Subsidiary has materially breached or materially violated any applicable Law, or is alleged to have, breached or violated in any material respect any Lawcertification, representation, certification, disclosure, clause, provision or requirement pertaining to any such Government Contract or Company Bid.
Contracts, (dE) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material or cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in under the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that Federal Acquisition Regulations has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes given (as such concept and is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries currently in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, effect as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating ) pertaining to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse claim or negative past performance evaluations or ratings in connection with any Material Company Government Contract request for equitable adjustment by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Acquiror or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by against a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (iiF) no payment due to Governmental Entity has requested a material contract price adjustment based on a claimed material disallowance by the Company Defense Contract Audit Agency (or any other applicable Governmental Authority) or claim of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000defective pricing.
(jb) Since the Applicable Date, (i) neither the Company Neither Acquiror nor any of its Subsidiaries, nor any of the their respective directors, officers or employees, nor, to employees (i) is (or during the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularity, material misstatement or material omission arising under or relating to any Government Contract (other than routine Defense Contract Audit Agency audits, in which no such material irregularities, material misstatements or material omissions were identified) or (ii) during the last three years has conducted or initiated any material internal investigation or made a voluntary disclosure to the United States Government, with respect to any material irregularity, misstatement or omission arising under or relating to any Government Contract.
(c) Except as has not had and would not be reasonably likely to have, (ii) to individually or in the Knowledge of the Companyaggregate, an Acquiror Material Adverse Effect, there is exist (i) no current or outstanding civil investigative demand or subpoena issued to the Company claims against Acquiror or any of its Subsidiaries, either by the United States government or by any Government Prime Contractor or Government Subcontractor arising under or relating to any Government Contracts and (ii) no disputes between Acquiror or any of its Subsidiaries and the United States Government under the Contract Disputes Act of 1978, as amended, or any other federal statute or between Acquiror or any of its Subsidiaries and any Government Prime Contractor or Government Subcontractor arising under or relating to any Government Contract.
(d) Neither Acquiror, any of its Subsidiaries nor any of its or their respective directors, officers officers, or employees is or for the last three years has been formally debarred or formally suspended from participation in the award of contracts with any Governmental Entity or has been declared ineligible for contracting with any Governmental Entity.
(e) Except as has not had and would not be reasonably likely to have, individually or in each case in their capacity as such)the aggregate, under the civil or criminal False Claims Act relating to any Government Contract and (iii) an Acquiror Material Adverse Effect, neither the Company Acquiror nor any of its Subsidiaries has made received an adverse or negative government past performance evaluation or rating that could adversely affect the evaluation by the Government, prime contractor, or higher tier subcontractor, as applicable, of any written disclosure under quotation, bid or proposals for an award of a new Government Contract or the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosurerenewal of an existing Government Contract.
(kf) The Company Except as has not had and would not be reasonably likely to have, individually or in the aggregate, an Acquiror Material Adverse Effect, Acquiror and each of its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all applicable national security obligations and security measures required by their Government Contracts or applicable to the Company Law, and its Subsidiaries relating to the safeguarding of and access to classified informationthere are no facts or circumstances that would, including those specified or would be reasonably likely to, result in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited suspension or otherwise restricted from performing termination of Government security clearances or bidding for any material work or material future business opportunities due that would be reasonably likely to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company render Acquiror or any of its Subsidiaries ineligible for such security clearances in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)future.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since Except as, individually or in the Applicable Dateaggregate, would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(a) No Government Contract or Government Bid is currently the subject of bid or award protest proceedings;
(b) The Company and its Subsidiaries have complied are in all material respects compliance with the terms and conditions of each Material Company such Government Contract and Material Company Bid or Government Bid, as requiredapplicable, including all clauses, provisions provisions, and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.law therein;
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor No event has occurred which would result in a breach or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that violation by the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in of any material respect any Applicable Law, representation, certification, disclosure, clause, provision provision, or requirement pertaining to any such Government Contract or Company Government Bid.;
(d) To Since the Knowledge of the CompanyLookback Date, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received has made or is subject been required to make any mandatory or voluntary disclosure to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice Governmental Entity or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining higher-tier contractor with respect to any Material Company alleged irregularity, misstatement, omission, fraud, or price mischarging, or other violation of Applicable Law, arising under or relating to a Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Contract or Government Bid;
(e) Since the Applicable Lookback Date, neither the Company nor any of its Subsidiaries has received any written ornotice of termination for default, cure notice, letter of concern, show cause notice, or other similar notice pertaining to the Knowledge performance of the Company, oral notice from any Governmental Entity pertaining to any Material Company a Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.Contract;
(ef) Since the Applicable Lookback Date, no material written or, to the Knowledge all invoices and claims for payment submitted by or on behalf of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any a Government Contract to which were current, complete, and accurate as of their submission date;
(g) Since the Lookback Date, all certified cost or pricing data and all data submitted by or on behalf of the Company or its Subsidiaries in connection with a Government Contract or Government Bid was current, complete, and accurate as of their submission date;
(h) The Company and its Subsidiaries hold all required facility and personnel security clearances necessary to perform the Government Contracts, and set forth on Section 3.14(h) of the Company Disclosure Schedule is a party.list of all facility security clearances held by the Company and its Subsidiaries;
(fi) To The Company and each of its Subsidiaries is in compliance with all security measures required by any Government Contract, Applicable Laws and applicable U.S. national security obligations, including but not limited to the Knowledge terms of any facility and personnel security clearances, the NISPOM and the SCA, and, to the Company’s Knowledge, there are no facts or circumstances that would reasonably be expected to result in the suspension or termination of any facility or personnel clearances used in the operation of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes Company and its Subsidiaries’ businesses or claims for an amount in excess of $25,000,000 between that would reasonably be expected to render the Company or any of its Subsidiaries ineligible for such security clearances in the future; and
(j) Neither the Company, its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries their respective directors, officers, or employees is, has received in writing any material adverse or negative past performance evaluations or ratings in connection been or, to the Company’s Knowledge, is threatened with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, being (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Companydebarred, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in or the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowanceContracts, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company under audit, indictment, or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” tam lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries in each case with respect to any alleged material irregularity, misstatement act or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since Except as set forth on the Applicable DateXpiData Disclosure Letter, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but XpiData is not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in a party to any Material Company Government Contract or Material Company Bid)government contracts.
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to XpiData has not been suspended or barred from bidding on contracts or subcontracts for any Government Contract agency or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws instrumentality of the United States, the functional equivalents thereof, if any) pertaining to States Government or any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employeeslocal government, nor, to the Knowledge of the CompanyPrincipals, has any consultants suspension or agents debarment action been threatened or commenced. There is no valid basis for XpiData's suspension or debarment from bidding on contracts or subcontracts for any agency of the Company United States Government or any of its Subsidiaries state or local government.
(c) Except as set forth in each case in their capacity as such)the XpiData Disclosure Letter, XpiData has not been, nor is it now being, audited, or has been under administrative, civil or criminal investigation, indictment or criminal information investigated by any Governmental Entity with respect to government agency, or the award inspector general or performance auditor general or similar functionary of any Government Contractagency or instrumentality, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit ornor, to the Knowledge of the CompanyPrincipals, has such audit or investigation been threatened.
(d) XpiData has no dispute pending before a contracting office of, nor any current claim (other than the Accounts Receivable) pending against, any agency or instrumentality of the Company United States Government or any of its Subsidiaries state or local government, relating to a contract.
(e) XpiData has not, with respect to any alleged material irregularitygovernment contract, misstatement received a cure notice advising XpiData that it is or omission arising was in default or would, if it failed to take remedial action, be in default under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosurecontract.
(kf) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsXpiData has not submitted any inaccurate, and all such security clearances are valid and in full force and effect. Since the Applicable Dateuntruthful, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in or misleading cost or pricing data, certification, bid, proposal, report, claim, or any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries other information relating to a contract to any agency or instrumentality of the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117United States Government or any state or local government.
(lg) The Company and its Subsidiaries are not currently limitedNo employee, prohibited agent, consultant, representative, or otherwise restricted from performing affiliate of XpiData is in receipt or bidding for possession of any material work competitor or material future government proprietary or procurement sensitive information related to XpiData's business opportunities due under circumstances where there is reason to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) believe that such receipt or Material Company Government Contract terms possession is unlawful or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)unauthorized.
(mh) To the extent applicableEach of XpiData's government contracts has been issued, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting awarded or novated to XpiData in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportXpiData's name.
Appears in 1 contract
Samples: Merger Agreement (Envoy Corp /Tn/)
Government Contracts. (a) Since Section 4.24(a) of the Applicable DateDisclosure Schedule contains a true and complete list of each Government Contract that is in effect as of the date of this Agreement to which the Company or the Company Subsidiary is a party. Except as set forth in Section 4.24(a) of the Disclosure Schedule, the Company has not received any notice and its Subsidiaries has no reason to believe that there has been or will be any material change in the terms of such Contracts or would result in a loss upon completion of the Transactions.
(b) Except as set forth on Section 4.24(b) of the Disclosure Schedule, with respect to the Government Contracts:
(i) Neither the Company nor the Company Subsidiary has been notified that any Government Bids or Government Contracts are currently the subject of bid or award protest proceedings;
(ii) The Company and the Company Subsidiary have complied with the terms and conditions of each Government Contract to which it is a party or is subject to and the requirements contained in solicitations for any Government Bid. The Company and the Company Subsidiary have complied with the Laws applicable and pertaining to each Government Contract. All representations, warranties, and certifications made by the Company and the Company Subsidiary with respect to any Government Contract, including all invoices and claims arising therefrom, were proper and accurate in all material respects as of their effective date, and the Company and the Company Subsidiary have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as requiredsuch representations, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited towarranties, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by certifications. Neither the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orSubsidiary nor, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining other party to any Government Contract is currently in violation, breach or Company Bid.default under any such contract or, with or without notice or lapse of time or both, would be in violation or breach of or default under any such contract;
(diii) To No Government Contract was entered into with the Knowledge anticipation that such Contract would result in a loss upon completion or performance thereof, nor has anything come to the attention of the Company, neither Company or the Company Subsidiary which would reasonably lead it to believe that there are any such Government Contracts currently expected to result in any loss. Neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries Subsidiary has received any written oror oral notification of cost, to the Knowledge of the Companyschedule, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating technical, or quality problems that it intends to cancel or otherwise adversely modify could result in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending claims against the Company (or its Subsidiaries successors in connection with any interest) by a Governmental Authority, a prime contractor, or a higher-tier subcontractor. There are no Government Contract Contracts pursuant to which the Company expects to experience cost, schedule, technical, or its Subsidiaries is quality problems that could result in claims against the Company (or successors in interest) by a party.Governmental Authority, a prime contractor or a higher-tier subcontractor. No Government Contract has incurred or currently projects losses or cost overruns;
(fiv) To Neither the Knowledge of Company nor the CompanyCompany Subsidiary has received or been subject to, as of within the three years from the date of this Agreement, there any termination for convenience, termination for default, cure notice, show cause notice, or other similar notice; no such action or notice is currently in effect, has been issued or remains unresolved and no event, condition, or omission that has occurred or exists that would constitute grounds for such an action;
(v) There is no alleged conduct that may be required to be disclosed to any Government Authority in connection with the award, performance or closeout of any Government Contract or Government Bid. Neither the Company nor the Company Subsidiary has made any voluntary or mandatory disclosures with respect to any alleged irregularity, material misstatement or material omission arising under or relating to any Government Contract or Government Bid;
(vi) There are: (A) no outstanding asserted claims or requests for equitable adjustment against the Company or the Company Subsidiary by a Governmental Authority or by any prime contractor, higher or lower tier subcontractor, vendor or other third party arising under or relating to any Government Contract; (B) no monies due to the Company or the Company Subsidiary pertaining to any Government Contract that has been withheld or set off, and no attempt to withhold or set off any monies due under any Government Contract; and (C) no outstanding disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiariesthe Company Subsidiary, on the one hand, and either the applicable Governmental Entity U.S. Government, on the other hand, under the Contract Disputes Act or any other statute or between the Company or the Company Subsidiary, on the one hand, and any prime contractor, higher or lower tier subcontractor, vendor or other Personthird party, on the other hand, arising under or relating to any such Government Contract or Company Bid.
(g) Since the Applicable Date, neither Contract. Neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor Subsidiary has any of its Subsidiaries has been the subject of pending or potential claim against a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Authority or any of its Subsidiaries pertaining to any individual Company Government Contract have been questionedprime contractor, proposed for disallowance, higher or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, lower tier subcontractor or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission vendor arising under or relating to any Government Contract; and
(vii) There are no open inquiries, (ii) investigations, disputes or controversies with respect to the Knowledge any Government Contract or any violations of any federal, state or local order, statute, rule, or regulation relating to Government Contracts, subcontracts, or export controls. No suspension, debarment, or exclusion proceeding actions with respect to Government Contracts have been commenced or threatened against the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company Subsidiary or any of its Subsidiariestheir directors, officers, or employees. No circumstances exist that would warrant the institution of suspension or debarment proceedings against the Company, the Company Subsidiary or any of their directors, officers, or employees. Neither the Company, nor the Company Subsidiary nor any of its or their respective directors, officers or employees has been (in each case in their capacity as such)A) debarred or suspended from participation in, under or the civil or criminal False Claims Act relating to award of, any Government Contract or, (B) is currently proposed for suspension or debarment. There has been no, and (iii) neither there is no basis for, a finding of fraud, defective pricing, mischarging, or improper payments on the part of the Company or the Company Subsidiary. Neither the Company nor the Company Subsidiary has been advised by any source, or advised verbally by an authorized governmental officer or point of contact of any prime contractor or higher tier subcontractor, that an audit, inspection, or investigation pertaining to any of its Subsidiaries has made any written disclosure Government Contracts will take place or is under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureconsideration.
(kc) The Neither the Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary nor the Company Subsidiary has assigned or otherwise conveyed or transferred, or agreed to perform all Material Company assign, to any Person, any Government Contracts, and all such or any amounts receivable, whether as a security clearances are valid and in full force and effectinterest or otherwise. Since the Applicable DateNo personal property, the Company and its Subsidiaries equipment or fixtures have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable been loaned, bailed or otherwise furnished to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company Subsidiary by or any on behalf of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)a Governmental Authority.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Op Tech Environmental Services Inc)
Government Contracts. (a) Since Except as set forth in Section 3.13(a) of the Applicable DateSeller Disclosure Schedules, with respect to each Government Contract that applies to the Company operation of the Business: (i) the applicable Seller Entity or Purchased Entity (or Subsidiary thereof) is in compliance with all applicable Laws, terms, and its Subsidiaries have complied conditions of such Government Contract; and (ii) the applicable Seller Entity or Purchased Entity (or Subsidiary thereof) is in compliance in all material respects with the terms and conditions all requirements of each Material Company applicable Law pertaining to such Government Contract including XXXX, FAR and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since Except as set forth in Section 3.13(b) of the Applicable DateSeller Disclosure Schedules, all representationssince October 1, certifications and disclosures made by 2017, (i) none of the Company and its Seller Entities or Purchased Entities (or Subsidiaries thereof), in each case with respect to the Business, has received any written notice or, to the Knowledge of Seller, any oral notice, from a Governmental Entity with respect to, and (ii) none of the Seller Entities or Purchased Entities (or Subsidiaries thereof), in each case with respect to the Business, is or has been a party to any litigation which would reasonably be expected to give rise to, any liability under (A) the False Claims Act, (B) XXXX or (C) Government Contract clauses or regulations relating to price reductions or defective pricing. Since October 1, 2017, none of the Seller Entities or Purchased Entities (or Subsidiaries thereof), (x) has received any notice from employees, consultants, independent contractors, or agents of such Seller Entity or Purchased Entity (or Subsidiary thereof), in each case with respect to the Business, or (y) has conducted or initiated any internal investigation for which it engaged outside counsel, a forensic accounting firm or any Person, or made any voluntary or involuntary disclosure under the FAR mandatory disclosure provisions to any Governmental Entity, in each case with respect to or concerning any actual, alleged or potential violation under clauses (A), (B) or (C) of the immediately preceding sentence.
(c) Except as set forth in Section 3.13(c) of the Seller Disclosure Schedules, with respect to each Government Contract under which final payment was received by a Seller Entity or Purchased Entity (or Subsidiary thereof), in each case with respect to the Business, since October 1, 2017, Seller has not had credible evidence that a Principal, Employee, Agent, or Subcontractor (as such terms are defined by FAR 52.203-13(a)) of such Seller Entity or Purchased Entity (or Subsidiary thereof) has committed a violation of federal criminal Law involving fraud, conflict of interest, bribery or gratuity violations found in Title 18 of the United States Code or a violation of the civil False Claims Act.
(d) Except as set forth in Section 3.13(d) of the Seller Disclosure Schedules, since October 1, 2017, none of the Seller Entities or Purchased Entities (or Subsidiaries thereof) or, to the Knowledge of Seller, any of their respective officers or directors, in each case, with respect to the Business, has been or is under indictment, or civil, administrative or criminal investigation by a Governmental Entity involving a Government Contract or Company Bid were currentGovernment Bid. Since October 1, accurate and complete at 2017, none of the time of disclosure Seller Entities or Purchased Entities (or have been formally corrected or otherwise finally resolved with a Governmental EntitySubsidiaries thereof), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, with respect to the Knowledge of the CompanyBusiness, orally, that the Company has entered into any consent order or any of its Subsidiaries has, administrative agreement relating directly or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining indirectly to any Government Contract or Company Government Bid.
(de) To the Knowledge of Seller, since October 1, 2017, none of the Company, neither the Company nor Seller Entities or Purchased Entities (or Subsidiaries thereof) or any of its Subsidiaries has, since the Applicable Date, received their respective directors or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (orofficers, in each case, with respect to the case Business, is or has been suspended, debarred, proposed for suspension or debarment by a Governmental Entity, or otherwise excluded from participation in the award of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to with any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to or has been declared ineligible for contracting with any Governmental Entity. To the Knowledge of the CompanySeller, no suspension or debarment Proceeding with respect to Government Contracts or Government Bids is pending or threatened to issue any such notice. Since the Applicable Date, neither the Company nor against any of its the Seller Entities or Purchased Entities (or Subsidiaries thereof) or any of their respective directors or officers.
(f) Except as set forth on Section 3.13(f) of the Seller Disclosure Schedules, the Seller Entities and Purchased Entities (and Subsidiaries thereof), in each case with respect to the Business, have no Government Contracts that were awarded as small business set-asides (total or partial).
(g) Except as set forth on Section 3.13(g) of the Seller Disclosure Schedules, since October 1, 2017, (i) none of the Seller Entities or Purchased Entities (or Subsidiaries thereof), in each case with respect to the Business, has received any written or, to the Knowledge of the CompanySeller, oral oral, show cause, cure, deficiency, default, termination or similar notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge no notice of the Companytermination for default or convenience, there is no current cure notice or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act show cause notice relating to any Government Contract has been issued to or threatened, in writing or, to the Knowledge of Seller, orally, against any of the Seller Entities or Purchased Entities (or Subsidiaries thereof), in each case with respect to the Business, and (iii) neither to the Company nor Knowledge of Seller, no event, condition or omission has occurred or exists that would constitute grounds for any of its the actions described in clauses (i) and (ii) above.
(h) Since October 1, 2017, no Governmental Entity has withheld or setoff an amount in excess of $2,000,000 otherwise due or payable to the Seller Entities or Purchased Entities (or Subsidiaries has made thereof), in each case with respect to the Business, under any written disclosure under Government Contract. To the FAR mandatory disclosure or payment provisions Knowledge of Seller, all invoices and claims (including, but not limited towithout limitation, FAR 52.203-13(b)(3requests for progress payments and provisional costs payments) submitted under any Government Contract were current, accurate and complete in all respects.
(i) Except as set forth on Section 3.13(i) of the Seller Disclosure Schedules, since October 1, 2017, none of the Seller Entities or Purchased Entities (or Subsidiaries thereof) has received any written notice or, to the Knowledge of Seller, oral notice, of any claims or contract disputes valued over $2,000,000 that are currently outstanding against or involve the Seller Entities or the Purchased Entities (or Subsidiaries thereof)) , in each case in respect of the Business, relating to any Governmental EntityGovernment Contract or Government Bid.
(j) None of the Seller Entities or Purchased Entities, in each case with respect to the Business, performs any activities under Government Contracts, or has any other relationship with any Person, that could result in an “organizational conflict of interest” as defined in FAR Subpart 9.5 and no circumstances have existed that would have warranted such a disclosureagency supplements thereto.
(k) The Company Each Seller Entity and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and Purchased Entity is in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects compliance with all security obligations incorporated in any Material Company Government Contract and all applicable national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including those specified in the National Industrial Security Program Operating ManualManual and any supplements, 32 C.F.R. Part 117amendments or revised editions thereof.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since In connection with the Applicable Date, business of the Company and its Subsidiaries:
(a) With respect to each Government Contract and Government Contract Bid, (i) each of the Company, its Subsidiaries have and their respective Affiliates has at all times complied in all material respects with the terms and conditions of such Government Contract; (ii) each Material Company Government Contract of the Company, its Subsidiaries and Material Company Bid as required, including their respective Affiliates have complied in all clauses, provisions and requirements incorporated expressly by reference material respects with all applicable Laws or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Contracts pertaining to such Government Contract or Material Company Government Contract Bid).
; (biii) Since the Applicable Date, all representations, warranties and certifications and disclosures made by the Company and its Subsidiaries with respect executed, acknowledged or set forth in or pertaining to any each such Government Contract or Company Government Contract Bid were current, accurate complete and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge and each of the Company, orallyits Subsidiaries and their respective Affiliates have complied with all such representations, warranties and certifications; (iv) no Governmental Authority nor any prime contractor, subcontractor or other Person has notified in writing the Company, its Subsidiaries or any of their respective Affiliates, that the Company Company, its Subsidiaries or any of its Subsidiaries has, or is alleged to have, such Affiliate has breached or violated in any material respect any Law, representationenactment, certification, disclosureregulation, representation, clause, provision or requirement pertaining to any such Government Contract or Company Government Contract Bid.
; (dv) To no termination for convenience, termination for default, cure notice, show cause notice, or stop work order is currently in effect pertaining to such Government Contract; (vi) to the Knowledge of the Company, neither no claim for costs incurred by the Company, its Subsidiaries or any of their respective Affiliates pertaining to such Government Contract has been challenged, is the subject of any investigation (other than in connection with a routine audit) or has been disallowed by any Governmental Authority and (vii) no money due to the Company nor or any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company such Government ContractContract has been withheld, reduced or set off nor has any claim been made to withhold or set off money and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor and its Subsidiaries are entitled to all progress or other payments received with respect thereto.
(b) None of the Company, its Subsidiaries or any of its Subsidiaries has received any written ortheir respective Affiliates nor, to the Knowledge of the Company, oral any of their respective directors, officers, employees, consultants, contractors or agents is or at any time has been, under or received any notice from of any planned or threatened Action by or before any Governmental Entity pertaining Authority with respect to any Material Company alleged act or omission arising under or relating to any Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge Government Contract Bid and none of the Company, oral claim its Subsidiaries or any of their respective Affiliates has conducted or initiated any internal investigation or inquiry (other than any such claim an informal investigation or inquiry that has been formally corrected or otherwise finally was resolved with without the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United Statesneed for further action) or other criminal made a voluntary disclosure to any Governmental Authority with respect to any actual or suspected violation of Law has been made arising under or has been pending against the Company or its Subsidiaries in connection with relating to any a Government Contract to which the Company or its Subsidiaries is a partyGovernment Contract Bid.
(fc) To the Knowledge of There are (i) no outstanding Actions against or involving the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company its Subsidiaries or any of its Subsidiariestheir respective Affiliates, on the one hand, and either the applicable by any Governmental Entity Authority or by any prime contractor, subcontractor, vendor or other Person, arising out of or relating to any Government Contract and (ii) no disputes between the Company, its Subsidiaries or their respective Affiliates, on the one hand, and any Governmental Authority, on the other hand, under any applicable Law, including the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), or between the Company, its Subsidiaries and their respective Affiliates, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract Contract. To the Knowledge of the Company, none of the Company, its Subsidiaries nor their respective Affiliates has any direct or Company Bidindirect financial interest in any pending or potential Action against or involving any Governmental Authority or any prime contractor, subcontractor or vendor arising out of or relating to any Government Contract.
(gd) Since the Applicable Date, neither the Company nor any None of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, its Subsidiaries or any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries their respective Affiliates has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, suspended from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to Authority. To the Knowledge of the Company, any consultants there exist no facts or agents circumstances that would warrant the institution of suspension or debarment proceedings or the finding of nonresponsibility or ineligibility on the part of the Company Company, its Subsidiaries or any of their respective Affiliates, or any director, officer or employee of the Company, its Subsidiaries (or any of their respective Affiliates. The Company’s and its Subsidiaries’ cost accounting and procurement systems and the associated entries reflected in each case the Company’s financial statements included in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity the Filed Company ISA Documents with respect to the award Government Contracts have at all times been in compliance in all material respects with applicable Laws.
(e) All test and inspection results provided by the Company, its Subsidiaries or performance any of their respective Affiliates to any Governmental Authority pursuant to any Government Contract or to any other Person pursuant to a Government Contract or as a part of the delivery to any Governmental Authority or other Person pursuant to a Government Contract of any article designed, engineered, manufactured or repaired by the Company, its Subsidiaries or any of their respective Affiliates were complete and correct in all material respects. The Company and its Subsidiaries have provided all test and inspection results to any Governmental Authority or to any other Person pursuant to a Government Contract as required by applicable Laws and the terms of the applicable Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to .
(f) To the Knowledge of the Company, investigation no statement, representation or warranty made by the Company, its Subsidiaries or any of their respective Affiliates to any Governmental Authority in connection with any Government Contract or to another party where the ultimate contracting party is a Governmental Authority contained any untrue statement of material fact, or failed to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
(g) None of the Company, its Subsidiaries or any of their respective Affiliates is in possession of any material property owned by any Governmental Authority, including material, tooling and test equipment, provided or necessary to perform the obligations under, or for which the Surviving Corporation could be held accountable under, any Government Contracts.
(h) Each Government Contract was entered into in the ordinary course of business.
(i) No reasonable basis exists to give rise to a claim against the Company or any of its Subsidiaries for fraud (as such concept is defined under the state or federal laws of the United States) in connection with any Government Contract or Government Contract Bid under the United States civil or criminal False Claims Acts, the United States Procurement Integrity Act or other laws adopted by any other Government Authority, as applicable. The Company, its Subsidiaries and their respective Affiliates, have not made any mandatory disclosure under FAR 52.203-13(b)(3) or any voluntary disclosure to any Governmental Authority with respect to any alleged material irregularityunlawful conduct, misstatement or omission arising under or relating to any Government ContractContract or Government Contract Bid, and there are no facts that would require mandatory disclosure under FAR 52.203-13(b)(3).
(iij) to the Knowledge of There are no outstanding claims against the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or and their respective directorsAffiliates, officers either by a Governmental Authority or employees (in each case in their capacity as such)by any prime contractor, subcontractor, vendor or other third party arising under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither or Government Contract Bid. There are no outstanding disputes between the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (includingCompany, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsAffiliates on the one hand, and all such security clearances are valid and in full force and effect. Since any Governmental Authority, on the Applicable Dateother hand, under the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company Disputes Act or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent other federal statute, or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of between the Company, no circumstances have existed since its Subsidiaries, and their respective Affiliates, on the Applicable Date that would have warranted one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any such a reportGovernment Contract or Government Contract Bid.
Appears in 1 contract
Samples: Merger Agreement (Newport Corp)
Government Contracts. (a) Since Section 5.19(a)(i) of the Applicable SRA Disclosure Schedule sets forth as of the date hereof a current, complete and accurate list of the current top 27 Government Contracts of SRA or any of its Subsidiaries the period of performance of which has not yet expired or terminated or for which final payment has not yet been received. Except for organizational conflicts of interest arising in connection with the transactions contemplated by the Transaction Agreements, to the Knowledge of SRA, each Government Contract of SRA or its Subsidiaries is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against SRA or its Subsidiaries and, to the Knowledge of SRA or its Subsidiaries, against the other parties thereto, in accordance with its terms. Immediately prior to the Closing Date, SRA shall deliver to CSC a list of each unexpired Government Bid of SRA or any of its Subsidiaries, which such list shall be complete and accurate as of the Company date thereof.
(b) Except as set forth in Section 5.19(b) or Section 5.8 of the SRA Disclosure Schedule, with respect to SRA and its Subsidiaries’ Government Contracts and Government Bids, to the Knowledge of SRA, during the last three (3) years:
(i) SRA and each of its Subsidiaries have complied in all material respects with the material terms and conditions of each such Government Contract and Government Bid, including all clauses, provisions, specifications and requirements incorporated expressly by reference therein and any applicable Laws pertaining to any such Government Contract or Government Bid;
(ii) all representations, certifications, disclosures and warranties acknowledged or submitted by or on behalf of SRA or its Subsidiaries with respect to each such Government Contract or Government Bid were current, accurate and complete in all material respects as of the respective dates they were made and SRA and its Subsidiaries have complied in all material respects with the terms all such representations, certifications, disclosures and conditions warranty requirements;
(iii) all Cost or Pricing Data (as defined in FAR § 2.101), sales, pricing and discount information submitted in support of each Material Company Government a General Services Administration, Federal Supply Schedule proposal or Government-wide acquisition Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly other information submitted by reference SRA or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any in support of the negotiation of Government Contract Contracts or Company Bid were Government Bids, or modifications thereto, or in support of requests for payment thereunder, were, as of the date of price agreement, payment or submission current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects. Neither SRA nor any of its Subsidiaries has received any notice, as either written or, to the Knowledge of their effective date.SRA and any of its Subsidiaries, orally, of any alleged mischarging or other defective pricing in violation of the Truth in Negotiations Act or the cost principle set forth in the FAR (other than routine contract audits by U.S. Governmental Entities), and there are (x) no reports that have been issued resulting from any audits, reviews, surveys or other investigations conducted by the Defense Contract Audit Agency or other U.S. Governmental Entity of any of the Government Contracts (past or present) that conclude that SRA or its Subsidiaries engaged in overcharging, mischarging or defective pricing practices or in any other practice in violation of the FAR, and (y) no audits, reviews, surveys or investigations by U.S. Governmental Entities of any Government Contracts (past or present), which are either ongoing or have been completed but the report of which has not been issued (and is reasonably expected to be issued) and which may recommend cost disallowances, fines, penalties or other sanctions;
(civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company SRA or any of its Subsidiaries, Subsidiaries either in writing or, to the Knowledge of the CompanySRA and its Subsidiaries, orally, that the Company SRA or any of its Subsidiaries hashas or may have defaulted, breached or violated, or is alleged to havehave defaulted, breached or violated in any material respect violated, any Law, order representation, certification, disclosure, clausewarranty, provision clause provision, specification or requirement requirements pertaining to any such Government Contract or Company Government Bid.;
(dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company SRA nor any of its Subsidiaries has received terminated any written Government Contract, and SRA and its Subsidiaries have not been notified in writing or, to the Knowledge of SRA and its Subsidiaries, orally, by the CompanyU.S. Government or any prime contractor that any such Government Contract has been terminated for convenience, oral for default or for any reason (other than upon the expiration of its terms or in connection with the completion of the applicable services thereunder). No cure notice, show cause notice, deficiency, default or similar notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify is currently in any material respect its relationship with the Company or its Subsidiaries.effect; and
(evi) Since except for withholding by a U.S. Government customer under the Applicable Dateterms of a Government Contract, no material written money due to SRA and its Subsidiaries pertaining to any Government Contract has been withheld or offset nor has any claim been made in writing or, to the Knowledge of SRA and its Subsidiaries, orally to withhold or offset money, and SRA or its Subsidiaries is entitled to all progress payments received with respect thereto.
(c) Except as set forth in Section 5.19(c) of the CompanySRA Disclosure Schedule, oral claim neither SRA nor any of its Subsidiaries or any of their directors or officers, other employees or agents is or during the last three years has been under administrative, civil or criminal investigation, indictment or information by any U.S. Governmental Entity. There has not been, and there is not currently pending or threatened, any material audit, survey, review or investigation (other than routine audits) by any such claim that has been formally corrected or otherwise finally resolved with the applicable U.S. Governmental Entity, including with respect to any alleged or actual irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid that could reasonably be expected to give rise to: (i) liability under the federal False Claims Act or similar state statute; (ii) a claim for price adjustment under the Truth in Negotiations Act; or (iii) any request for a reduction in the price of any Government Contract. During the last three (3) years, neither SRA nor any of its Subsidiaries (i) has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid that could reasonably be expected to give rise to: (A) liability under the federal False Claims Act or similar state statute, (B) a claim for price adjustment under the Truth in Negotiations Act, or (C) any request for a reduction in the price of any Government Contract, or (ii) has made any disclosure under the FAR mandatory disclosure provisions to any Governmental Entity with respect to credible evidence of a violation of federal criminal law involving the fraud, conflict of interest, bribery or gratuity provisions found in Title 18 of the United States Code, a violation of the civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined a significant overpayment in connection with the award, performance or closeout of any Government Contract, and to the Knowledge of SRA and its Subsidiaries, there are no facts that would require mandatory disclosure under the state FAR.
(d) Except as set forth in Section 5.19(d) or federal Laws Section 5.8 of the United StatesSRA Disclosure Schedule, there are: (i) no material outstanding claims or requests for equitable adjustment against SRA or any of its Subsidiaries and a U.S. Governmental Entity arising under or relating to a Government Contract, and no prime contractor, subcontractor, vendor or other criminal Law third party has been made notified SRA or has been pending against the Company or any of its Subsidiaries in connection with writing, or to the Knowledge of SRA and its Subsidiaries, orally of any material claim or request for equitable adjustment arising under or relating to any Government Contract to which or Government Bid; and (ii) no material disputes between SRA and any of its Subsidiaries, on the Company one hand, and the U.S. Government or its Subsidiaries is a party.
(f) To any other Governmental Entity, on the Knowledge of other hand, under the CompanyContract Disputes Act, as of the date of this Agreement41 U.S.C. §§ 7101-7109, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 any other Law, or between the Company SRA or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Personthird party, on the other hand, arising under or relating to any Government Contract or Company Government Bid.
(ge) Since Except as set forth in Section 5.19(e) of the Applicable DateSRA Disclosure Schedule, neither SRA nor its Subsidiaries, or any of their directors or officers, is or during the Company nor last three (3) years has been suspended, debarred or proposed for suspension or debarment from participation in, or the award of, contracts or subcontracts for or with a Governmental Entity, and to the Knowledge of SRA and its Subsidiaries, no suspension or debarment actions with respect to Government Contracts have been commenced or threatened against SRA or any of its Subsidiaries has received in writing or any material adverse of their directors, officers or negative past performance evaluations employees. Additionally, to the Knowledge of SRA and its Subsidiaries, no facts or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since circumstances exist that would warrant the Applicable Date, (i) neither institution of suspension or debarment proceedings on the Company nor part of SRA or any of its Subsidiaries has been the subject or any of their directors, officers or employees, or a written finding of non-responsibility or ineligibility with respect to any outstanding Government Bid.
(f) No facts exist which would reasonably be expected to give rise to Liability under a claim for government contracting and fraud (iias such concept is defined under the state or federal laws of the United States) or for violation of the United States civil or criminal False Claims Act, the United States Procurement Integrity Act, or other similar Laws adopted by any other Governmental Entity, as applicable, in each case in connection with any Government Contract. To the Knowledge of SRA, neither the Company, SRA nor any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, .
(iig) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company Neither SRA nor any of its Subsidiaries has made received any written disclosure under past performance evaluations, ratings or reports including any rating less than “satisfactory” in connection with any Government Contract within the FAR mandatory disclosure or payment provisions past five (including, but not limited to, FAR 52.203-13(b)(3)5) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureyears.
(kh) The Company Except as set forth in Section 5.19(h) of the SRA Disclosure Schedule, and excluding claims for payment in the ordinary course of performance of any Government Contract, since the SRA Applicable Date, and to the Knowledge of SRA and its Subsidiaries (i) no material payment due to SRA or any of its Subsidiaries pertaining to a Government Contract has been withheld, recouped, or set-off, nor has any material claim been made to withhold, recoup or set-off any payment (except as may be required as a standard withholding in accordance with the payment or award fee terms of the applicable Government Contract); and their respective employees possess all facility (ii) none of the U.S. Government Contracts has incurred, or currently projects to incur, a material cost overrun at contract completion, in excess of any amount accrued in accordance with GAAP on SRA’s financial statements filed with the SEC, except in the case of clauses (i) and personnel security clearances (ii) above, for such withholdings, recoupment, set-offs and cost overruns that would not, individually or in the aggregate, constitute a SRA Material Adverse Effect. Neither SRA nor any of its Subsidiaries has any outstanding Government Bids that, if accepted or awarded, are reasonably expected to result in a loss.
(i) Neither SRA nor any of its Subsidiaries is using any intellectual property developed under any Government Contract without having obtained the necessary to perform all Material Company prior permission of the applicable Governmental Entity. All Intellectual Property delivered or used by SRA or its Subsidiaries in performance of a Government ContractsContract, including technical data, computer software, and all computer software documentation, other than third party computer software, has included the proper restrictive legends, such security clearances are valid as “Restricted Rights,” “Government Purpose Rights,” “Limited Rights” or “Special License Rights,” within the meaning of the FAR and in full force and effect. Since the Applicable DateDepartment of Defense FAR Supplement.
(j) Without giving effect to any organizational conflicts of interest that may arise as a result of the transactions contemplated under this Agreement, Section 5.19(j) of the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company SRA Disclosure Schedule identifies by Government Contract and all national security obligations applicable description, any work or future business opportunities from which, to the Company Knowledge of SRA and its Subsidiaries relating to the safeguarding Subsidiaries, SRA or any of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not is currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities bidding, due to express “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government ), Contract terms or provisions, except pursuant to existing or organizational conflicts of interest mitigation plans submitted by the Company SRA or any of its Subsidiaries in connection with any Material Company Government Contract Contract.
(k) SRA and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by Subsidiaries are in compliance in all material respects with all applicable national security obligations, including those specified NISPOM and requirements relating to mitigation of FOCI, and have all of the facility and personnel security clearances necessary to conduct the business of SRA and its Subsidiaries as currently being conducted in all material respects. SRA and its Subsidiaries hold and, at all relevant times since August 1, 2012 held, at least a “satisfactory” rating from the DSS with respect to all facility security clearances.
(l) Neither SRA nor any of its Subsidiaries, nor any director, manager, officer thereof (nor to the Knowledge of SRA and its Subsidiaries, any employee or Person acting for or on behalf of any of the foregoing), has for the last three (3) years (i) used any funds for unlawful contributions, gifts, gratuities, entertainment or other unlawful expenses related to political activity, (ii) made any payment or offered, promised or authorized the payment of anything of value to any government official or employee or any political party of candidate for political office for the purpose of influencing any act or decision of such official or of any Governmental Entity to obtain or retain business or direct business to any Person in violation of Law; (iii) made any other payment in violation of Law to any official of any Governmental Entity, including bribes, gratuities, kickbacks, lobbying expenditures, political contributions or contingent fee payments, or (iv) violated any applicable money laundering or anti-terrorism law or regulation, nor have any of them otherwise taken any action which would cause SRA or any of its Subsidiaries to be in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable law of similar Law)effect.
(m) To Except as set forth in Section 5.19(m) of the extent applicableSRA Disclosure Schedule, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company SRA and its Subsidiaries have not submitted made any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge assignment of the Company, no circumstances Government Contracts or of any interests in the outstanding Government Contracts. SRA and its Subsidiaries have existed since the Applicable Date that would have warranted such a reportnot entered into any financing arrangements with respect to any outstanding Government Contract.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sra International, Inc.)
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of With respect to each Material Company Government Contract and Material any proposals or bids submitted for any Government Contract, during the five (5) years prior to the date hereof: (i) neither the Company Bid as requirednor any of the Company Subsidiaries nor any of their respective directors, including all clausesofficers, provisions and requirements incorporated expressly by reference principals, or, to the Knowledge of the Company, any current employee is or by operation of Law therein (includinghas been suspended or debarred, but not limited toproposed for debarment or suspension, declared ineligible or determined non-responsive from holding, performing or bidding on any Government Contract, and as may be applicableno such proceeding regarding suspension, the Truthful Cost and Pricing Data Actdebarment, ineligibility or non-responsibility has been commenced or threatened; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”ii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, or subcontractor has notified the Company or any of its the Company Subsidiaries, as applicable, in writing or, to the Knowledge of the Company, orally, that the Company any breach or violation of any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any applicable Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
; (diii) To the Knowledge of the Company, neither the Company nor any of its the Company Subsidiaries has, since the Applicable Date, has received or is subject to any written notice of termination for conveniencedefault or cause, notice of termination for defaultcure notice, stop work order, material cure notice or material show cause notice notice; (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsiv) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge notice of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel audits or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract investigations by any Governmental Entity
; (h) Since the Applicable Date, (iv) neither the Company nor any of its the Company Subsidiaries has been the subject notified of a written finding of non-responsibility any other material claim or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining other material dispute relating to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and Contract; (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (ivi) neither the Company nor any of its Subsidiariesthe Company Subsidiaries has conducted an internal investigation for which it engaged outside counsel or a forensic accounting firm, nor made any of the respective directors, officers voluntary or employees, nor, mandatory disclosure to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contractirregularity, the subject of any actual or threatened in writingmisstatement, “whistleblower” or “qui tam” lawsuitsignificant overpayment, or any audit oractual, to alleged or potential violation of law; (vii) the Knowledge of the Company, investigation Company and each of the Company or any Subsidiaries have complied, in all material respects, with all Laws applicable to Government Contracts and the terms and conditions of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or (including all representations and certifications relating to any to) each Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract ; and (iiiviii) neither the Company nor any of its the Company Subsidiaries has made performed any written disclosure under the FAR mandatory disclosure Government Contract subject to cost reimbursement requirements as defined by 48 C.F.R. Subpart 16.3, or payment provisions otherwise subject to cost reimbursement requirements contained in 48 C.F.R. Parts 30 or 31. (including, but not limited to, FAR 52.203-13(b)(3)b) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, Neither the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in nor any Material Company Government Contract and all national security obligations applicable to of the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified holds a facility security clearance as defined in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Manual (DoD 5220.22-M) or any similar security clearance issued by any non-U.S. Governmental Entity.
(lc) The Company has provided true and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for correct copies of all subpoenas issued by any material work or material future business opportunities due Governmental Entity to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its the Company Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel the five (5) year period prior to the date hereof regarding any Government Contract, other than any subpoena issued at the request of this Agreement (except a private party in a litigation matter unrelated to the extent making such Material Company any Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.Contract. 62
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Macquarie Infrastructure Corp)
Government Contracts. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Companies (and their Subsidiaries), taken as a whole:
(a) Since Except as set forth in Section 3.13(a) of the Applicable DateSeller Disclosure Schedules, since October 1, 2016, (i) the applicable Seller Entity or Purchased Company (or Subsidiary thereof) is and its Subsidiaries have complied has been in compliance in all material respects with the all terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Bid, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (includingand all requirements thereunder relating to the safeguarding of, but not limited and access to, classified information, covered defense information and as may be applicable, the Truthful Cost and Pricing Data Actcontrolled unclassified information; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”ii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications certifications, disclosures and disclosures made warranties executed, acknowledged or submitted by the or on behalf of a Seller Entity or Purchased Company and its Subsidiaries (or Subsidiary thereof) with respect to any Government Contract or Company Government Bid were current, accurate and complete at in all material respects as of the time of disclosure respective dates they were made (or have deemed made); (iii) the applicable Seller Entity or Purchased Company (or Subsidiary thereof) is and has been formally corrected in compliance in all material respects with all requirements of applicable Law pertaining to such Government Contract or otherwise finally resolved Government Bid, including TXXX, FAR, EU Procurement Law and any applicable agency supplement (including the Department of Defense Supplement to the FAR) and the Cost Accounting Standards; and (iv) each such Government Contract was legally awarded, is binding on the Seller Entity or a Purchased Company (or Subsidiary thereof), and is in full force and effect and no Government Bid is currently the subject of bid protest proceedings through the Closing Date.
(b) Except as set forth in Section 3.13(b) of the Seller Disclosure Schedules, since October 1, 2016, none of the Seller Entities or Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, (i) has received any written notice from a Governmental EntityEntity with respect to, or (ii) is or has been a party to, any Proceeding or any material claim or dispute asserted pursuant to the United States Contract Disputes Act or EU Procurement Law arising under or relating to a Government Contract, which would reasonably be expected to give rise to material Liability, including any material penalty or assessment of fines or other sanctions, under (A) the federal False Claims Act, (B) TXXX, (C) Government Contract clauses or regulations relating to price reductions or defective pricing, or (D) the Cost Accounting Standards. To the Knowledge of Seller, there has not been any review, audit or investigation by any Governmental Entity (and to the Knowledge of Seller, no such review, audit or investigation has been threatened) with respect to, any Government Contract or Government Bid (other than any routine audits or indirect rate audits by the Defense Contract Audit Agency or the Defense Contract Management Agency or other Governmental Entities), which would reasonably be expected to give rise to material Liability, including any material penalty or assessment of fines or other sanctions, under (A) the federal False Claims Act, (B) TXXX, (C) Government Contract clauses or regulations relating to price reductions or defective pricing, (D) the Cost Accounting Standards or (E) EU Procurement Law.
(c) Except as set forth in Section 3.13(c) of the Seller Disclosure Schedules, with respect to each current Government Contract and Government Contract under which final payment was received by a Seller Entity or Purchased Company (or Subsidiary thereof), in each case with respect to the Business, since October 1, 2016, Seller does not have credible evidence that a Principal, Employee, Agent, or Subcontractor (as such terms are defined by FAR 52.203-13(a)) of such Seller Entity or Purchased Entity (or Subsidiary thereof) has committed a violation of federal criminal Law involving fraud, conflict of interest, bribery or gratuity violations found in Title 18 of the United States Code or a violation of the civil False Claims Act.
(d) Except as set forth in Section 3.13(d) of the Seller Disclosure Schedules, since October 1, 2016, (i) none of the Seller Entities or Purchased Companies (or Subsidiaries thereof) or, to the Knowledge of Seller, any of their respective officers or directors, in each case, with respect to the Business, has been or is under indictment, or civil, administrative or criminal investigation by a Governmental Entity involving a Government Contract or Government Bid, or the subject of any actual “whistleblower” or qui tam lawsuit, and (ii) none of the Seller Entities or the Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, has conducted an internal investigation for which it engaged outside counsel, a forensic accounting firm or any Person, or made any voluntary or mandatory disclosure under the FAR mandatory disclosure provisions to any Governmental Entity with respect to or concerning any actual, alleged or potential violation of Law under any Government Contract or Government Bids on the part of the Seller Entities or the Purchased Companies (or Subsidiaries thereof) or their respective officers, directors, employees, agents or representatives, in each case, with respect to the Business. To the Knowledge of Seller, there are no facts that would require mandatory disclosure under the FAR with respect to any Government Contract or Government Bid on the part of the Seller Entities or the Purchased Companies (or Subsidiaries thereof), in each case, with respect to the Business. Since October 1, 2016, none of the Seller Entities or Purchased Companies (or Subsidiaries thereof), in all material respectseach case, as of their effective datewith respect to the Business, has entered into any consent order or administrative agreement relating directly or indirectly to any Government Contract or Government Bid.
(ce) Since October 1, 2016, none of the Applicable Date through Seller Entities or the date of this Agreement, no Governmental Entity nor any prime contractor Purchased Companies (or subcontractor has notified the Company or any of its SubsidiariesSubsidiaries thereof), in writing each case with respect to the Business, or, to the Knowledge of the CompanySeller, orally, that the Company or any of its Subsidiaries hastheir respective directors, officers or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (oremployees, in the each case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, with respect to the Knowledge of the CompanyBusiness, threatened to issue any such notice. Since the Applicable Datehas been suspended or debarred, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of Seller, proposed for suspension or debarment by a Governmental Entity from holding, performing, bidding or participating in the Company, oral notice from award of Contracts with any Governmental Entity pertaining to or has been declared ineligible or determined non-responsible for contracting by any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to Governmental Entity. To the Knowledge of the CompanySeller, oral claim (other than no suspension or debarment or ineligibility or non-responsibility Proceeding with respect to Government Contracts or Government Bids is pending or threatened against any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United StatesSeller Entities or Purchased Companies (or Subsidiaries thereof) or other criminal Law has been made any of their respective directors, officers or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a partyemployees.
(f) To the Knowledge Except as set forth in Section 3.13(f) of the CompanySeller Disclosure Schedules, since October 1, 2016, no Government Contract to which a Seller Entity or a Purchased Company (or Subsidiary thereof), in each case with respect to the Business is or has been a party (i) has been terminated by the counterparty thereto for cause or default, in whole or in part, by such Seller Entity or Purchased Company (or Subsidiary thereof), or (ii) has been the subject of notice of termination for convenience in whole or in part, or any cure notice, show cause notice, deficiency or similar notice or stop work order.
(g) Except as set forth in Section 3.13(g) of the date Seller Disclosure Schedules, since October 1, 2016, none of this Agreementthe Seller Entities or the Purchased Companies (or Subsidiaries thereof), there exists in each case with respect to the Business, have been required to implement any organizational conflict of interest mitigation plan pursuant to FAR Subpart 9.5 or any contract clause, provision or requirement of any Government Contract or Government Bid.
(h) Since October 1, 2016, no outstanding asserted disputes costs incurred by the Seller Entities or claims for the Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, in excess of $2,000,000 have been questioned, challenged or disallowed as a result of a written report, finding or determination by a Governmental Entity, and no Governmental Entity has withheld or setoff or made any written claim or demand to withhold or setoff, an amount in excess of $25,000,000 between 2,000,000 otherwise due or payable to the Company Seller Entities or Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, under any Government Contract. The Seller Entities or the Purchased Companies (or Subsidiaries thereof) are entitled to all progress, milestone or other payments received to date under any Government Contract in effect as of the date hereof, in each case with respect to the Business.
(i) The Seller Entities or the Purchased Companies (or Subsidiaries thereof) are in compliance in all material respects with all applicable national security obligations, have the required procedures and facility and personnel security clearances in place to conduct the Business of a classified nature up to the level of its present clearances, and are taking and have taken all actions necessary to maintain and protect such facility and personnel security clearances. The Seller Entities or the Purchased Companies (or Subsidiaries thereof) are, with respect to the Business, in compliance in all material respects with applicable industrial security clearance requirements, including without limitation, those specified in the National Industrial Security Program Operational Manual, DOD 5220.22-M (February 28, 2006, Incorporating Change 2, May 18, 2016), as appropriate, and with respect to the Business, have implemented proper procedures, practices and records necessary to maintain security clearances for performance of Government Contracts to the extent required by such Government Contracts. The clearances maintained by the Business are all of the facility and personnel security clearances reasonably necessary to conduct the Business in all material respects as conducted as of the date hereof. Except as set forth on Section 3.13(i) of the Seller Disclosure Schedules, the Seller Entities and the Purchased Companies and their Subsidiaries, in each case with respect to the Business, have no unresolved adverse audit or other materially adverse findings with the U.S. Department of Defense, Defense Counterintelligence and Security Agency (“DCSA”) (formerly known as the Defense Security Service (“DSS”)) or any other cognizant security agency (“CSA”) concerning its facility security clearances and for the past three (3) years have held at least a “satisfactory” rating from DCSA, DSS, or any other CSA with respect to its applicable facility security clearances.
(j) Except as set forth in Section 3.13(j) of its Subsidiariesthe Seller Disclosure Schedules, on the one handSeller Entities or Purchased Companies (or Subsidiaries thereof) have not received any written notice, and or to the Knowledge of Seller, oral notice, of any claims, requests for equitable adjustment or disputes valued over $2,000,000 that are currently outstanding against or involving the Seller Entities or the Purchased Companies (or Subsidiaries thereof) in respect of the Business, either the applicable by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract Contract. The Seller Entities or Company Bid.
Purchased Companies (gor Subsidiaries thereof) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowedhave, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award Business, no (A) interest in any pending claim involving over $2,000,000 against any Governmental Entity or performance of (B) interest in any Government Contractpending claim involving over $2,000,000 against any prime contractor, the subject of any actual subcontractor, vendor or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission other Person arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case other than claims for payment in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any ordinary course of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosurebusiness.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and Except as set forth in full force and effect. Since Section 3.13(k) of the Applicable DateSeller Disclosure Schedules, the Company and its Seller Entities or Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, have complied no Government Contracts that were awarded as small business set-asides (total or partial).
(l) Except as set forth in Section 3.13(l) of the Seller Disclosure Schedules:
(i) The Seller Entities or Purchased Companies (or Subsidiaries thereof), in each case with respect to the Business, are in compliance in all material respects with all security obligations incorporated statutory and regulatory requirements under the Arms Export Control Act (22 U.S.C. § 2778), the International Traffic in any Material Company Government Contract Arms Regulations (ITAR) (22 C.F.R. §§ 120 et seq.), the U.S. Department of Energy’s regulations at 10 C.F.R. Part 810, the Export Administration Regulations (15 C.F.R. §§ 730 et seq.) and all national security obligations applicable to Executive Orders based on the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified authority vested in the National Industrial Security Program Operating ManualPresident under the International Emergency Economic Powers Act (IEEPA), 32 C.F.R. Part 117.
as amended, the Trading with the Enemy Act (lTWEA) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted other U.S. Sanctions laws; sanctions administered by the Company or any U.S. Department of its Subsidiaries in connection with any Material Company Government Contract State, including, but not limited to nonproliferation sanctions and made available to Parent or its outside legal counsel prior to sanctions under the date Iran Sanctions Act of this Agreement 1996, as amended (except to 50 U.S.C § 1701 note); and the extent making such Material Company Government Contract available to Parent is prohibited Laws implemented by applicable national security or similar Lawthe Office of Foreign Assets Controls (“OFAC”).
(m) To ; and the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable DateUK Export Control Order 2008, the Company Radioactive Sources (Control) Order 2006, the EU Dual-Use Regulation (EC) No. 428/2009; and its any other economic, trade or financial sanction, export control, embargo and/or military or dual-use restriction administered by the United Nations, the UK and/or the European Union (including any member state) (collectively, and any successors or replacements thereof, the “Export Control Laws”). Since October 1, 2014, the Seller Entities or Purchased Companies (or Subsidiaries thereof) have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) received written, or otherwise and, to the Knowledge of Seller, oral communication from any Governmental Entity or any other Person of any actual or alleged material violation, breach or noncompliance with the CompanyExport Control Laws, no circumstances in each case in respect of the operation of the Business.
(ii) The Seller Entities or Purchased Companies (or Subsidiaries thereof) are in material compliance with the anti-boycott regulations administered by the U. S. Department of Commerce and the U.S. Department of Treasury and Section 999 of the Internal Revenue Code, and all Laws and regulations administered by the Bureau of Customs and Border Protection in the U.S. Department of Homeland Security, in each case with respect to the operation of the Business.
(iii) Since October 1, 2014, the Seller Entities or Purchased Companies (or Subsidiaries thereof), in each case with respect to the operation of the Business, have existed since not (i) entered into a Consent Agreement with the Applicable Date Directorate of Defense Trade Controls (“DDTC”), or (ii) had any fines or penalties imposed by the State or Commerce Departments or OFAC or other applicable Governmental Entities in connection with violations of the Export Control Laws. The Seller Entities or Purchased Entities (or Subsidiaries thereof), in each case with respect to the Business, do not have any open investigations, voluntary disclosures or enforcement actions that would have warranted such a reportare currently being reviewed by the State or Commerce Departments or OFAC or other applicable Governmental Entities with authority under Export Control Laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Aecom)
Government Contracts. (aExcept as set forth in Section 5.1(t) Since the Applicable Date, of the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).Disclosure Schedule:
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(di) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject with respect to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company each Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United Statesbelow) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract outstanding Bid (as defined below) to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, : (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its SubsidiariesSubsidiaries has complied in all material respects with all material terms and conditions of such Government Contract or Bid, including clauses, provisions and requirements incorporated expressly, by reference or otherwise resolved and by operation of Law therein; (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries has complied in all material respects with all applicable requirements of statute, rule, regulation, order or agreement with the U.S. Government pertaining to such Government Contract or Bid; (iii) all material representations and material certifications executed, acknowledged or set forth in or pertaining to such Government Contract or Bid were current, accurate and complete in all material respects as of their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contractseffective date, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated such material representations and material certifications; (iv) neither the U.S. Government, nor any prime contractor, subcontractor or any other person has notified the Company or any of its Subsidiaries, in writing, that the Company or any Material Company of its Subsidiaries has breached or violated any Law pertaining to such Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationor Bid, including those specified except for such breaches or violations that, individually or in the National Industrial Security Program Operating Manualaggregate, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limitedreasonably likely to have a Company Material Adverse Effect; (v) no termination for convenience, prohibited termination for default, cure notice or otherwise restricted from performing show cause notice has been issued in writing and not resolved or bidding for any cured; (vi) no material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted cost incurred by the Company or any of its Subsidiaries has been questioned in connection with any Material Company Government Contract and made available to Parent writing or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)disallowed other than those which have been resolved.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since Since the Applicable Date, the Company and each of its Subsidiaries are and have not submitted been in compliance in all material respects with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, and all implementing regulations, all as amended, with respect to each Government Contract. Since the Applicable Date, the Company and each of its Subsidiaries are and have been in compliance in all material respects with all applicable foreign laws, rules, regulations, decisions and orders relating to personnel policies, affirmative action, and/or government contracts in each jurisdiction in which the Company or any cyber incident report pursuant to DFARS 252.204-7012(cof its Subsidiaries has business operations.
(iii) or otherwise and, to To the Knowledge of the Company, since the Applicable Date, there has been no circumstances have existed (A) civil fraud, false claim, criminal act or bribery (in each case as such concept is defined under the state or federal laws of the United States), or any other material violation of applicable law, by the Company or any of its Subsidiaries or any director, officer, principal or employee of the Company or its Subsidiaries, (B) written request by a Governmental Entity for a material contract price adjustment based on a claimed material disallowance by the Defense Contract Audit Agency (or other applicable Governmental Entity) or a written material claim of defective pricing in material violation of the applicable acquisition or procurement regulations of a Governmental Entity, or (C) material dispute between the Company or any of its Subsidiaries and a Governmental Entity (other than disputes in the ordinary course of business which are no longer outstanding). To the Knowledge of the Company, since the Applicable Date, none of the Company or any of its Subsidiaries, nor any of their respective affiliates, directors, officers, or principals has or currently is under administrative, civil or criminal investigation, indictment or information or material audit (other than routine audits) with respect to any alleged material irregularity, material misstatement or material omission arising under or relating to any Government Contract or Bid and none of the Company or any of its Subsidiaries nor any of their respective affiliates, directors, officers, or principals has made or has been required to make a disclosure pursuant to applicable regulations with respect to any alleged material irregularity, material misstatement or material omission arising under or relating to any Government Contract or Bid.
(iv) None of the Company or its Subsidiaries, nor, to the Company’s Knowledge, any of their respective affiliates, directors, or officers is, or at any time since the Applicable Date that would have warranted such a reporthas been, suspended or debarred from doing business with the U.S. Government or, to the Company’s Knowledge, has been declared nonresponsible or ineligible for U.S. Government contracting.
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateJanuary 1, the Company and its Subsidiaries have complied in all material respects 2012, with the terms and conditions of respect to each Material Company Government Contract and Material Company Government Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, except as would not have, individually or in writing orthe aggregate, to the Knowledge of the Company, orally, that a Material Adverse Effect:
(i) the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any and each of its Subsidiaries has received any written or, to the Knowledge complied with all terms and conditions of the Company, oral notice from any Governmental Entity pertaining to any Material Company such Government Contract indicating that it intends to cancel and Government Bid, including regulatory provisions included or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any incorporated by reference into each such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one handand Government Bid, and either the Laws applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any each such Government Contract or Company Government Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract ; and all representations and certifications made by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement Government Contract or omission arising under or relating to any Government Contract, Bid were accurate as of their effective date;
(ii) to no Governmental Entity or other Person has notified the Knowledge Company or any of the Company, there is no current or outstanding civil investigative demand or subpoena issued to its Subsidiaries in writing that the Company or any of its Subsidiaries, nor or any officer or employee of the Company of any of its Subsidiaries, has breached or their respective directorsviolated any Law, officers certification, representation, clause, provision or employees (in each case in their capacity as such)requirement pertaining to such Government Contract or Government Bid, under the civil and there are no pending audits or criminal False Claims Act investigations relating to any Government Contract and such alleged breaches or violations; and
(iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR voluntary or mandatory disclosure in writing to any Governmental Entity with respect to any violation of Law arising under or payment provisions relating to any Government Contract or Government Bid.
(includingb) Since January 1, but 2012, with respect to each Government Contract of the Company or any of its Subsidiaries, except as would not limited tohave, individually or in the aggregate, a material effect on the Company and its Subsidiaries, taken as a whole, no termination for convenience, termination for default, cure notice or show cause notice has been issued to the Company or any of its Subsidiaries and remains unresolved pertaining to any Government Contract.
(c) Except as would not have, individually or in the aggregate, a Material Adverse Effect, there are no outstanding disputes between the Company or any of its Subsidiaries and any Governmental Entity or any other Person arising under or relating to any Government Contract or Government Bid.
(d) Since January 1, 2012, neither the Company nor any of its Subsidiaries nor any Principal (as that term is defined in FAR 52.203-13(b)(313) of the Company or any of the Company’s Subsidiaries are or have been debarred, noticed for debarment or suspended from participation in the award of contracts with the U.S. Government or any other Governmental Entity (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements)) to any Governmental Entity, and no circumstances suspension or debarment actions with respect to Government Contracts have existed been commenced or, to the Knowledge of the Company, threatened against the Company, any Subsidiary of the Company or any Principal (as that would have warranted such a disclosureterm is defined in FAR 52.203-13) of the Company or any of the Company’s Subsidiaries.
(ke) The Company and its Subsidiaries maintain and their respective employees possess all facility and personnel security clearances necessary granted pursuant to the National Industrial Security Program Operating Manual (NISPOM) by either the United States Department of Defense or other United States Governmental Authorities to perform all Material classified Government Contracts and as otherwise reasonably necessary for the conduct by the Company Government Contracts, and all such security clearances are valid and in full force and effectits Subsidiaries of their United States government business. Since the Applicable Date, the The Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in requirements necessary to maintain the facility clearances whether imposed by the NISPOM, Defense Security Service or any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Contract.
(lf) The Company and its Subsidiaries There are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company no Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by Contracts outside the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)EPT Business.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Om Group Inc)
Government Contracts. (a) Since Schedule 2.20(a)(i) of the Applicable DateDisclosure Letter accurately lists, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of for each Material Company Government Contract and Material Company Bid as requiredfor which the period of performance has not expired or for which final payment has not been received (each, including all clausesa “Current Government Contract”): (i) the contract number, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited toii) the award date, and as may be applicable(iii) the contract end date. Schedule 2.20(a)(ii) of the Disclosure Letter accurately lists all outstanding Government Bids and, with respect to each outstanding Government Bid, accurately lists (A) a description of the Truthful Cost proposal, (B) the expected award date, if known, and Pricing Data Act; (C) the Service Contract Act; estimated contract value based on the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid)proposal.
(b) Since the Applicable Date, all representations, certifications and disclosures The Company has made by the Company and its Subsidiaries with respect available to any Government Contract or Company Bid were current, accurate Acquiror correct and complete at copies of all Current Government Contracts, including all amendments, and modifications, and has provided Acquiror with access to true and correct copies of material correspondence, including any change or purchase orders that contained express references to FAR or DFARS requirements. The Current Government Contracts were legally awarded, are binding on the time applicable parties, and are in full force and effect. None of disclosure (the Current Government Contracts are currently the subject of bid or have been formally corrected or otherwise finally resolved with a Governmental Entity)award protest proceedings, in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, and no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing orGovernment Bids are, to the Knowledge of the Company, orally, that reasonably likely to become the subject of bid or award protest proceedings.
(c) With respect to every Government Contract or Government Bid: (i) the Company has complied with all material terms and conditions of such Government Contract or Government Bid, including clauses, provisions and requirements incorporated expressly, by reference, or by operation of Applicable Law therein, (ii) the Company has complied with all Applicable Laws pertaining to such Government Contract or Government Bid, including but not limited to the FAR, any applicable agency-specific FAR supplement or acquisition regulation and related cost principles, and any applicable Cost Accounting Standards, (iii) all material representations, certifications, and warranties executed or acknowledged by the Company, or set forth in, or pertaining to, such Government Contract or Government Bid were current, accurate and complete as of their effective date, and the Company has complied with all such representations, certifications, and warranties, (iv) no Governmental Entity, prime contractor, subcontractor or any other Person has notified the Company in writing of its Subsidiaries has, an alleged breach or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to violation of the terms of any Government Contract or Government Bid nor of Applicable Law pertaining to such Government Contract or Government Bid, (v) no termination for convenience, termination for default, cure notice or show cause notice has been received by the Company and not resolved or cured, (vi) no substantially adverse or negative past performance evaluation or rating has been received by the Company that could reasonably be expected to adversely affect the potential award of a Government Contract to the Company, (vii) no negative determination of responsibility has been issued to the Company with respect to any quotation, bid or proposal for any Government Contract or Government Bid, (viii) no cost or charge incurred by the Company has been questioned or disallowed other than those that have been resolved, and (ix) no money due to the Company pertaining to such Government Contract has been withheld or offset nor has any claim been made to the Company to withhold or offset money.
(d) To the Knowledge of the CompanySince January 1, 2017, neither the Company nor any of its Subsidiaries hasdirectors, since the Applicable Dateofficers, received or is employees, representatives, agents, in their capacities as such, have been subject to any notice criminal indictment, lawsuit, subpoena, civil investigative demand, discovery request, administrative proceeding, voluntary disclosure, claim, dispute, mediation or arbitration with regard to, any material violation of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) any requirement pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company a Government Contract indicating that it intends to cancel or otherwise adversely modify in Government Bid, including material violations of any material respect its relationship with the Company or its SubsidiariesApplicable Laws relating thereto.
(e) Since the Applicable DateJanuary 1, no material written or2017, to the Knowledge except for any audit, review, inspection, investigation, survey or examination of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or records relating to any a Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation Bid in the award ordinary course of Contracts or subcontracts for or business consistent with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity past practice and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract or Government Bid, the Company has not: (i) undergone, or is currently undergoing, any audit, review, inspection, investigation, survey or examination of records relating to any Government Contract, (ii) received written notice of or undergone any investigation or review relating to any Government Contract, (iii) been threatened with an audit, review, inspection, investigation, survey or examination of records, (iv) received any official notice that it is or was being specifically audited or investigated by the Government Accountability Office, the Defense Contract Audit Agency of the United States Government, or any other state or federal agency, entity, or representative relating to a Government Contract or Government Bid, or (v) received any notice that any audit, review, inspection, investigation, survey or examination of records has revealed any fact, occurrence or practice that would reasonably be expected to adversely affect the Company.
(f) Except as set forth in Schedule 2.20(f) of the Disclosure Letter: (i) there are no existing or threatened in writing claims against the Company, asserted by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Person relating to any Government Contract (excluding claims for payments due in the ordinary course of performance of any such Government Contract), (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to disputes exist between the Company or and any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such)Governmental Entity, under the civil Contract Disputes Act or criminal False Claims Act any other Applicable Law, or between the Company and any prime contractor, subcontractor or vendor, relating to any Government Contract Contract, and (iii) neither the Company nor has not asserted any of its Subsidiaries has made claim or initiated any written disclosure under the FAR mandatory disclosure dispute proceedings, directly or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to indirectly against any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureprime contractor, subcontractor or vendor concerning any Government Contract.
(kg) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, none of its directors, officers, representatives, agents, consultants, or employees is (or at any time since January 1, 2017 has been) suspended or debarred from doing business with any Governmental Entity, or proposed for suspension or debarment or declared non-responsible or ineligible to receive a Government Contract. No debarment, suspension or exclusion proceeding has been initiated against the Company, or, to the Knowledge of the Company, any, directors, officers, representatives, agents, consultants, or employees of the Company. To the Knowledge of the Company, no circumstances exist that may lead to the institution of suspension or debarment proceedings against the Company, or to the Knowledge of the Company any of its directors, officers, representatives, agents, or employees. The Company has not since January 1, 2017, been terminated for default under any Government Contract.
(h) The Company possesses all necessary national security clearances for the execution of their obligations under any Current Government Contract. The Company is in compliance with applicable National Security Laws and requirements and have existed in place proper procedures, practices and records to access classified information up to the level of its current clearances and to maintain the security clearances necessary to perform its Current Government Contracts.
(i) Except as set forth on Schedule 2.20(i) of the Disclosure Letter, none of the Government Contracts or Government Bids were awarded or submitted pursuant to a procurement that was restricted to contractors having small business status, small disadvantaged business status, mentor or protégé status, or other preferential status.
(j) Except as set forth on Schedule 2.20(j) of the Disclosure Letter, there are no Current Government Contracts or Government Bids that include any terms or provisions that restrict the Company’s ability to bid on or perform work on future Government Contracts based upon an “organizational conflict of interest” as defined in FAR Subpart 9.5. To the extent that the Company performs activities under Government Contracts that could result in an organizational conflict of interest, the Company, its directors, officers, representatives, agents, and employees have complied with any and all conflict of interest policies established by the Company.
(k) No Current Government Contract has incurred or currently projects losses, nor shall any Government Bid, if accepted or entered into, obligate the Company to process, manufacture or deliver products or perform services that could reasonably be expected to incur, or currently project, losses. No payment has been made by the Company or by a Person acting on the Company’s behalf to any Person (other than to any bona fide employee or agent of the Company, as defined in subpart 3.4 of the FAR), which is or was contingent upon the award of any Government Contract. The Company is not subject to any “forward pricing” regulations.
(l) Except as set forth on Schedule 2.20(l) of the Disclosure Letter, the Company has not assigned or otherwise conveyed or transferred, or agreed to assign or otherwise convey or transfer, any Government Contract or any account receivable relating thereto, to any Person whether as a security interest or otherwise.
(m) Except as set forth on Schedule 2.20(m) of the Disclosure Letter, no personal property, equipment or fixtures are loaned, bailed or otherwise furnished to the Company by or on behalf of any Governmental Entity.
(n) The Company has taken all steps available under all Government Contracts and Applicable Law to assert, protect and support its rights in Company Owned IP that is material to the business of the Company (including such technical data, computer software documentation, inventions and other Company Owned IP) so that no more than the minimum rights or licenses required under Applicable Laws and Government Contract terms shall have been provided to the receiving party or the Governmental Entity. Without limiting the foregoing, with respect to Company Owned IP that is material to the business of the Company, the Company has timely disclosed and elected title to all subject inventions, timely listed all technical data and computer software to be furnished with less than unlimited rights in any required assertions table, and included the proper and required restrictive legends on all copies of any technical data, computer software, computer software documentation, and other Intellectual Property delivered under any Government Contract. All such markings and rights were properly asserted and justified under the Government Contracts, and no Governmental Entity, prime contractor, or higher-tier subcontractor has challenged or, to the Knowledge of the Company, has any basis for challenging, the markings and rights asserted by the Company. The Company has not used or disclosed any Intellectual Property developed under any Government Contract in a manner prohibited by such Government Contract without having obtained any permission required by Law of the relevant Governmental Entity or other authorized party.
(o) The Company has complied with all data security, cybersecurity, and physical security terms and conditions and procedures required by its Government Contracts and by all Applicable Law. Except as set forth in Schedule 2.20(o) of the Disclosure Letter since January 1, 2017, to the Applicable Date that would have warranted such a reportKnowledge of the Company, the Company has not had or experienced any breach of data security or cybersecurity, whether physical or electronic. Any data security, cybersecurity or physical security breach related to any Government Contract has been reported, within the allowed time, to the necessary Governmental Entity or higher tier contractor, as required by the terms of the Government Contract.
Appears in 1 contract
Samples: Share Purchase Agreement (Ceva Inc)
Government Contracts. (a) Since the Applicable DateSchedule 4.7(a) sets forth a true, the Company correct and its Subsidiaries have complied in all material respects with the terms and conditions complete list of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference that is currently in effect or by operation of Law therein (including, but not limited to, and as may be applicable, which was in effect at any time during the Truthful Cost and Pricing Data Act; three-year period prior to the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with date hereof. With respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company such Government Contract, and, since Schedule 4.7(a) indicates: (i) the Applicable Date, no Governmental Entity has, to contract name and/or number; (ii) the Knowledge effective date; (iii) the contact parties; (iv) the period of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
performance; and (ev) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract each modification thereto to which the Company or its Subsidiaries is a party.
(fb) To the Knowledge Schedule 4.7(b) sets forth a true, correct and complete list of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between each Government Bid which the Company has submitted or any of its Subsidiariesparticipated in within the past twelve months. With respect to each such Government Bid, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(gSchedule 4.7(b) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, indicates: (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and bid submission date, (ii) neither the Companyexpected award date, any of its Subsidiaries nor any director or officer of and (iii) the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements)anticipated contract value.
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated Legal Requirements pertaining to the Government Contracts or Government Bids listed on Schedule 4.7(a) and Schedule 4.7(b) (and in any Material Company Government Contract material certificate, statement, list, schedule or other documents submitted or furnished in connection with the foregoing); (ii) all representations and all national security obligations applicable to certifications made by the Company and its Subsidiaries relating set forth in such Government Contracts or Government Bids were complete and correct as of their effective date; (iii) no prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries in writing that the Company or any of its Subsidiaries has breached or violated any Legal Requirements pertaining to the safeguarding such Government Contracts or Government Bids; and (iv) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect in respect of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117any Government Contract.
(ld) The All facts set forth in or acknowledged by the Company and or any of its Subsidiaries are not currently limitedin any disclosure statements, prohibited representations, warranties, certifications or otherwise restricted from performing other documents made, submitted or bidding furnished to any Governmental Body with respect to any Government Contract or Government Bid were correct, current and complete as of their submission date. No termination for any material work convenience, termination for default, cure notice, show cause notice, claim, request for equitable adjustment or material future business opportunities due dispute is currently in effect, has been issued or made, or has been threatened, with respect to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company any Government Contract terms or provisionsGovernment Bid, except pursuant and no cost incurred or invoice rendered by the Company or any of its Subsidiaries pertaining to existing organizational conflicts any Government Contract is currently being questioned or has been withheld or disallowed by any Governmental Body or has been or now is, the subject of interest mitigation plans submitted by an investigation.
(e) Since January 1, 2012, there has been no finding of fraud or any claim of any liability as a result of defective pricing, labor mischarging or improper payments on the part of the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent Contracts or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Bids.
(mf) To Neither the extent applicable, Company nor any of its Subsidiaries is using or providing to any third party any Intellectual Property developed under any Government Contract for purposes other than those allowed under such Government Contract without having obtained the necessary and appropriate prior permission of the Governmental Body or prime contractor (ias the case may be) involved.
(g) Schedule 4.7(g) sets forth a true and complete list of (A) all facility security clearances and access authorizations held by the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (iiB) since all personnel security clearances and access authorizations held by the Applicable DateCompany’s and its Subsidiaries’ employees, to the extent such clearances are required in connection with the Government Contracts or Government Bids listed on Schedule 4.7(a) and Schedule 4.7(b). The Company and its Subsidiaries have not submitted any cyber incident report pursuant possess all facility security clearances and access authorizations necessary to DFARS 252.204-7012(c) or otherwise andperform the Government Contracts listed on Schedule 4.7(a), to the Knowledge of Company’s Knowledge, the Company, no circumstances have existed since ’s and its Subsidiaries’ subcontractor(s) and independent contractor(s) under the Applicable Date that would have warranted Government Contracts listed on Schedule 4.7(a) possess all necessary security clearances to perform such a reportGovernment Contracts.
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateFor purposes of this Section 3.23, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company term Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company shall include Government Contract or Material Company Bid)Bids.
(b) Since Except as set forth on Section 3.23(b) of the Applicable DateSeller Disclosure Letter, all representationssince January 1, certifications and disclosures made by 2014: (i) the Company and its the Company Subsidiaries have materially complied with each Government Contract and all Laws applicable to each Government Contract; (ii) neither the Company nor any Company Subsidiary has made a voluntary or mandatory disclosure in writing to any Governmental Body with respect to any violation or potential violation of Law with respect to any Government Contract or Company Bid were current, accurate Contract; and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(ciii) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any Body, prime contractor contractor, or subcontractor has notified the Company or a Company Subsidiary in writing of a breach or violation of applicable Law with respect to any Government Contract.
(c) To the Knowledge of Seller, since January 1, 2014, all certifications, representations and disclosure statements submitted by the Company or a Company Subsidiary with respect to a Government Contract were accurate and complete in all material respects as of the date of submission, and were properly updated in all material respects to the extent required by Law and the applicable Government Contract.
(d) Neither the Company, the Company Subsidiaries, nor any of its Subsidiariestheir Principals (as defined in FAR 2.101 for purposes of this Section 3.23) are debarred or suspended in any form from doing business with a Governmental Body nor have they otherwise been declared ineligible to do business with a Governmental Body. To the Knowledge of Seller, in writing orthere are no circumstances that would be reasonably expected to warrant the institution of proceedings for debarment, suspension, or ineligibility against the Company, a Company Subsidiary, or any of their Principals.
(e) Except as set forth on Section 3.23(e) of the Seller Disclosure Letter, to the Knowledge of Seller, neither the Company, orally, that the Company or Subsidiaries, nor any of its Subsidiaries hastheir Principals are under investigation, charge, or is indictment with respect to any alleged to haveirregularity, breached violation, misstatement or violated omission arising under or in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining way relating to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge Except as set forth on Section 3.23(f) of the Company, as of the date of this AgreementSeller Disclosure Letter, there exists are no outstanding asserted disputes pending audits, cost reviews, compliance reviews, or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable related investigations by a Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer Body of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the a Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission Subsidiary arising under or relating to any Government Contract, .
(iig) to To the Knowledge of Seller, the CompanyCompany and the Company Subsidiaries possess all material security clearances necessary for the execution of their obligations under all Government Contracts. To the Knowledge of Seller, there is are no circumstances existing as of the date hereof that would be reasonably expected to result in the suspension, revocation or denial of a current or outstanding civil investigative demand pending personal or subpoena facility security clearance.
(h) No Government Contract issued to the Company or any a Company Subsidiary in the last six (6) years has been awarded or sought on the basis of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (includinga Company Subsidiary qualifying as a small business concern, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)13 C.F.R. Part 121.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kratos Defense & Security Solutions, Inc.)
Government Contracts. (a) Since the Applicable DateUnless prohibited by Industrial Security Laws, the Company and each of its Subsidiaries has made available to Parent true and complete copies of each Government Contract as of the date hereof with a total contract value (including any funded or unfunded option periods and any such Contract under which any task or delivery orders have been placed and any task or delivery orders) in excess of $250,000 (each, a “Specified Government Contract”), including all material amendments and modifications thereto.
(i) The Company and each of its Subsidiaries have complied in all material respects with the all terms and conditions of each Material Company Specified Government Contract and Material Company each Government Contract Bid as requiredthat, if awarded, would have a total contract value (including any funded or unfunded option periods, and any task or delivery orders) in excess of $250,000 (each, a “Specified Government Contract Bid”), including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited totherein, and as may has performed in all material respects each obligation required to be applicableperformed by it thereunder, (ii) the Truthful Cost Company and Pricing Data each of its Subsidiaries has complied in all material respects with each Law applicable to each Specified Government Contract and Specified Government Contract Bid, including the Truth in Negotiations Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; , the Cost Accounting Standards; , the Procurement Integrity Act and applicable provisions of Title 18 of the United States Code involving fraud, conflict of interest, bribery or gratuity violations, and no alleged material Federal Acquisition Regulation breach or material violation of any Law or requirement, termination for default, cure notice, show cause notice or other similar notice has been issued or claimed by a Governmental Authority, prime contractor or higher tier subcontractor, in writing that remains unresolved with respect to any Specified Government Contract, (“FAR”), Department of Defense FAR Supplement (“DFARS”iii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any warranties executed, acknowledged or set forth in, or pertaining to, each Specified Government Contract or Company Specified Government Contract Bid were current, accurate and complete at in all material respects as of their effective date, and the time Company and each Subsidiary has complied, as applicable, in all material respects with all such representations, certifications and warranties, (iv) no material payments due to the Company or a Subsidiary of disclosure (or the Company pertaining to any Specified Government Contract have been formally corrected rejected, withheld or otherwise finally resolved with set off, nor has any material claim been made pursuant to a Governmental Entity)Government Contract to withhold or set off money, in and there is no reasonable basis to expect any such rejection, withholding or set off, (v) to the knowledge of the Company, all costs, fees, profits and other charges and expenses of any nature that have been charged, and all sums invoiced, under each caseGovernment Contract were, in all material respects, properly chargeable or invoiced to such Government Contract and were charged or invoiced in amounts consistent in all material respects with the requirements of such Government Contract and applicable Law, including applicable requirements relating to allowability, allocability and reasonableness, and (vi) each invoice and claim for payment submitted under each Specified Government Contract (including requests for progress payments and provisional cost payments) was accurate in all material respects as of their effective its submission date.
(c) Since the Applicable Date through With respect to each Government Contract and each Government Contract Bid, (i) as of the date hereof, there is no Litigation pending (other than qui tam claims or other similar claims filed under seal and of this Agreementwhich the Company does not have knowledge) or, no Governmental Entity nor to the knowledge of the Company, threatened, including any prime contractor claim under the United States False Claims Act and (ii) such Government Contract or subcontractor has notified Government Contract Bid, as applicable, is not based on an actual or asserted preferential status of the Company or any of its Subsidiaries, in writing orincluding §8(a) status, small business status, small disadvantaged business status, protégé status, or other preferential status afforded by federal statute or regulation, nor, to the Knowledge knowledge of the Company, orallydid any Governmental Authority, that prime contractor or higher-tier subcontractor under a Government Contract rely upon such business status or business size or other preferential status of the Company or any of its Subsidiaries hasin evaluating any quotation, bid, or is alleged to haveproposal, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to making award of any Government Contract or Company BidContract.
(d) From January 1, 2014 through the date hereof:
(i) To the Knowledge knowledge of the Company, neither none of the Company nor or any of its Subsidiaries hasor any of their respective Principals (as defined at FAR 52.209-5(a)(2)) is or has been under any material administrative, since civil or criminal investigation or indictment, audit or review by any Governmental Authority (in each case, other than broad based routine audits or inquiries in the Applicable Date, received or is subject ordinary course) with respect to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice act or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state omission arising under or federal Laws of the United States, the functional equivalents thereof, if any) pertaining relating to any Material Company Government Contract, ; and, since
(ii) To the Applicable Date, no Governmental Entity has, to the Knowledge knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither none of the Company nor or any of its Subsidiaries has received Subsidiaries, or any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes their respective Principals (as such concept defined at FAR 52.209-5(a)(2)), or any of their respective managers or employees is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against debarred or suspended from participation in, or the Company or its Subsidiaries in connection award of, Contracts with any Government Contract to which the Company or its Subsidiaries is a party.
(f) Governmental Authority. To the Knowledge knowledge of the Company, as of the date of this Agreementhereof, there exists exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings or a finding of non-responsibility on the part of the Company, any of its Subsidiaries or any of their respective Principals (as defined at FAR 52.209-5(a)(2)) or any of their respective managers or employees.
(e) As of the date hereof:
(i) There are no material outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either any Governmental Authority, on the applicable Governmental Entity other hand, under the Contract Disputes Act of 1978 or between the Company or any of its Subsidiaries, on the one hand, and any prime contractor, subcontractor, vendor or other Personthird party, on the other hand, arising under or relating to any Government Contract;
(ii) There are no material claims outstanding or threatened in writing against the Company or any of its Subsidiaries, either by a Governmental Authority or by a prime contractor, subcontractor, vendor or other third party arising under or relating to any Government Contract or Government Contract Bid to which the Company Bidor any of its Subsidiaries is a party;
(iii) To the knowledge of the Company, none of the Company or any of its Subsidiaries has any economic interest in any pending material Litigation or potential material Litigation under the Contract Disputes Act against the United States Government or any prime contractor, subcontractor, vendor or third party arising under or relating to any Government Contract; and
(f) Each of the Company and its Subsidiaries is in compliance in all material respects with all applicable Industrial Security Laws, and the Company, its Subsidiaries and their respective employees possess all requisite facility and personnel clearances necessary to perform their respective obligations under each Government Contract, and none of the Company or any of its Subsidiaries has received a negative or adverse finding from the Defense Security Service in the three years prior to the date hereof. Schedule 3.14(f) lists each facility clearance held by the Company and any of its Subsidiaries.
(g) Since Subject to any prohibition on the Applicable Datedisclosure of classified information, Schedule 3.14(g) sets forth (i) a list of each Specified Government Contract of the Company and each of its Subsidiaries as of the date hereof that is currently active in performance, (ii) each Specified Government Contract Bid and (iii) each multiple-award indefinite delivery/indefinite quantity prime Government Contract for which the ordering period has not expired. Each Government Contract was legally awarded, is binding on the parties thereto and is in full force and effect, and none of the Government Contracts or Government Contract Bids are currently the subject of bid or award protest proceedings.
(h) The Company and each of its Subsidiaries has complied in all material respects with Federal Acquisition Regulation (“FAR”) 52.203-13 to the extent applicable to a Government Contract. As of the date hereof, none of the Company or any of its Subsidiaries has made any mandatory disclosure under FAR 52.203-13 or any voluntary disclosure to any Governmental Authority, prime contractor, subcontractor, vendor or any other person with respect to any potential violation by the Company or any of its Subsidiaries of a Government Contract or of a Law applicable to such Government Contract Bid. To the knowledge of the Company, as of the date hereof, no facts or circumstances exist that, with the passage of time or the giving of notice or both, would reasonably be expected to lead to such a mandatory disclosure.
(i) In the three years prior to the date hereof, (i) no Government Contract has been terminated for default, and (ii) neither the Company nor any of its Subsidiaries has received any written notice terminating any Government Contract for convenience.
(j) As of the date hereof, neither the Company nor any of its Subsidiaries has received a less than satisfactory past performance evaluation or rating that, to the knowledge of the Company, could reasonably be expected to adversely affect the potential award of a Government Contract to the Company or any of its Subsidiaries.
(k) The Company’s and its Subsidiaries’ cost accounting system complies, and has complied during the three years prior to the date hereof, in writing all material respects with applicable Laws and regulations (including the FAR cost principles and Cost Accounting Standards).
(l) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has entered into any organizational conflict of interest mitigation plan or performed any activity under any Government Contract, and has no other relationships with any Person, that constitutes an “organizational conflict of interest” as defined in FAR Subpart 9.5 that would impact its ability to perform its Government Contracts and any contract resulting from the Government Contract Bids. To the knowledge of the Company, the Company, each of its Subsidiaries, and their respective trustees, directors, officers, managers, principals, employees, representatives, agents or consultants, have complied in all material respects with all conflict of interest policies established by the Company and its Subsidiaries.
(m) Neither the Company nor any of its Subsidiaries has assigned or otherwise conveyed or transferred, or agreed to assign or otherwise convey or transfer, any Government Contract or Government Contract Bid, or any account receivable relating thereto, to any Person, whether as a security interest or otherwise.
(n) Neither the Company nor, to the knowledge of the Company, any of its Subsidiaries, nor, to the knowledge of the Company, any of their respective employees or Principals (as defined in FAR 52.209-5) has violated in any material adverse respects any legal, administrative or negative past performance evaluations contractual restriction concerning the employment of (or ratings discussions concerning possible employment with) current or former officials or employees of any Governmental Authority.
(o) The Company and each of its Subsidiaries and, to the knowledge of the Company, their respective employees and Principals (as defined in connection FAR 52.209-5) have complied in all material respects with applicable timekeeping/time recordation requirements in each Government Contract.
(p) During the three years prior to the date hereof, (i) all personnel who performed under any Material Company Government Contract by met all express qualification requirements for the labor categories under which they have been charged or are being charged in all material respects, (ii) all personnel listed in any Government Contract or Government Contract Bid met all labor category or other job requirements set forth in the applicable Contract or solicitation in all material respects and (iii) neither the Company nor any of its Subsidiaries replaced any material personnel performing a Government Contract without obtaining all required approvals from the applicable Governmental EntityAuthority and any other party whose consent is required for replacement of personnel.
(hq) Since All material personal property, equipment or fixtures loaned or bailed to the Applicable DateCompany or any of its Subsidiaries by or on behalf of a Governmental Authority have been handled in all material respects with the terms, conditions and laws applicable to such loans or bailments.
(r) During the three years prior to the date hereof, with respect to the Company’s and each of its Subsidiaries’ multiple award and federal supply schedule contracts, each of the Company and its Subsidiaries: (i) has complied in all material respects with the notice and pricing requirements of the Price Reduction Clause, and, to the knowledge of the Company, there are no facts or circumstances that would reasonably be expected to result in a demand for a refund based upon the material failure to comply with the Price Reduction Clause; and (ii) has complied in all material respects with applicable requirements to permit an Industrial Funding Fee.
(s) To the knowledge of the Company, each of the Company and its Subsidiaries has complied in all material respects with all necessary data security, cybersecurity and physical security systems and procedures required by its Government Contracts. To the knowledge of the Company, during the three years prior to the date hereof, (i) neither the Company nor any of its Subsidiaries has been the subject of had or experienced any cyber incident as defined in DFARS 252.204-7012 affecting a written finding of non-responsibility or ineligibility for government contracting Government Contract and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining such cyber incident related to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set offreported, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000the extent applicable.
(jt) Since Each Company Product was developed with U.S. federal government funding, pursuant to a Government Contract (the Applicable Date“Government Funded Company Products”). Except for the initial sale under the Government Contract pursuant to which the respective Government Funded Company Product was developed, (i) neither the Company nor any Subsidiary has sold or licensed any Government Funded Company Product, or any enhancement or modification thereto, directly or indirectly to any Governmental Authority. All disclosures, elections, and notices required by applicable regulations and Government Contract terms that are necessary to protect ownership of its Subsidiariesinventions developed, nor any of conceived or first actually reduced to practice under a Government Contract have been made. To the respective directors, officers or employees, nor, to the Knowledge knowledge of the Company, any consultants all technical data, computer software and computer software documentation developed, delivered or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries used in connection with any Material Company Government Contract have been properly and made available sufficiently marked as appropriate to Parent or its outside legal counsel prior perfect the minimum allocation of technical data and software rights to the date of this Agreement (except to Government as specified in the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)relevant Contract.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Keyw Holding Corp)
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither each of the Company nor Acquired Companies has complied with all applicable statutory and regulatory requirements with respect to each Government Contract awarded to it and each and every bid, quotation or proposal submitted by it to any Authority or any prospective prime contractor or subcontractor.
(b) None of the Acquired Companies has violated any United States export control Laws or regulations in the performance of its Subsidiaries has, since the Applicable Date, received or is subject to Government Contracts at any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice tier.
(excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsc) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to To the Knowledge of the Company, threatened each Acquired Company has complied with each certification it has executed, acknowledged or set forth with respect to issue each Government Contract awarded to it and each bid it has submitted to any such notice. Since the Applicable DateAuthority or any prospective prime contractor or subcontractor.
(d) Each Acquired Company has complied in all material respects with all clauses, neither the Company nor any provisions and requirements incorporated expressly, by reference or by operation of law in its Subsidiaries has received any written orGovernment Contracts, to including all provisions regarding assignment or change of control.
(e) To the Knowledge of the Company, oral notice from all written certifications, representations or disclosure statements submitted by any Governmental Entity pertaining Acquired Company with respect to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract were accurate as of the date of submission, and were properly updated to which the Company extent required by applicable Law or its Subsidiaries is a partycontract.
(f) To the Knowledge of the Company, as (i) none of the date Acquired Companies, the Seller, or any Acquired Company’s officers, employees or agents are currently debarred or suspended from doing business with any Authority, and (ii) none of this Agreementsuch persons has otherwise been declared ineligible for government business. To the Knowledge of the Company, there exists are no outstanding asserted disputes circumstances that would be reasonably expected to warrant the institution of debarment or claims for an amount in excess suspension or ineligibility proceedings against any Acquired Company, the Seller or any of $25,000,000 between the Acquired Companies’ officers, employees or agents.
(g) To the Knowledge of the Company, none of the Acquired Companies is currently contracting with, nor have they contracted with contractors who, under applicable Law, are debarred or suspended or who, under applicable Law, are prohibited or sanctioned entities or countries.
(h) Since April 1, 2007, no Acquired Company has had any Government Contract terminated (other than any Government Contract that expired pursuant to the terms thereof or that was terminated because the related program or funding was discontinued)
(i) To the Knowledge of the Company, there are no material irregularities, misstatements or omissions relating to any of the Government Contracts or any of its Subsidiariesbids, on quotations or proposals submitted by the one handAcquired Companies that have led to (1) any administrative, civil or criminal investigation or indictment of the Acquired Companies; (2) the recoupment of any payments previously made to the Acquired Companies; or (3) the assessment of any penalties or damages against the Acquired Companies, arising out of such irregularities, misstatements or omissions, that, in the case of clauses (1), (2) and (3), would be reasonably expected to have a Material Adverse Effect.
(j) To the Knowledge of the Company, the Acquired Companies have not received written notice of any outstanding claims against, or outstanding audits or investigations with respect to, the Acquired Companies either the applicable Governmental Entity by any Authority or by any prime contractor, subcontractor, vendor or other Person, on the other hand, third party arising under or relating to any Government Contract and there are no facts upon which such a claim, audit or Company Bidinvestigation reasonably may be based in the future.
(gk) Since The Acquired Companies have all right, title and interest in all real and personal property, leases, agreements and records necessary for performance of the Applicable DateGovernment Contracts, neither including but not limited to all fixed tangible and intangible assets, fixtures, equipment, personnel, management and administration necessary for performance of any orders under any current Government Contract.
(l) None of the Company nor Acquired Companies has been convicted of or had a civil judgment rendered against any of its Subsidiaries has received in writing any material adverse them, for (1) commission of fraud or negative past performance evaluations or ratings a criminal offense in connection with any Material Company Government Contract by any Governmental Entityobtaining, attempting to obtain, or performing a federal, state or local transaction or contract under a federal, state or local transaction; (2) violation of federal or state antitrust statutes; or (3) commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property.
(hm) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to To the Knowledge of the Company proposed Company, no federal appropriated funds have been paid or will be paid, by or on behalf of the Acquired Companies, to any person for influencing or attempting to influence an officer or employee of any agency, a finding member of debarment Congress, an officer or suspensionemployee of Congress, from participation or an employee of a member of Congress in connection with (1) the award awarding of Contracts or subcontracts for or any federal contract, (2) the making of any federal grant, (3) the making of any federal loan, (4) the entering into of any cooperative agreement with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowanceAuthority, or deemed finally disallowed(5) the extension, in each casecontinuation, in writing by a Governmental Entity and in an amount in excess renewal, amendment or modification of $10,000,000any federal contract, which costs have not been reservedgrant, reflected in the consolidated financial statements of the Company and its Subsidiaries, loan or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, norcooperative agreement. If, to the Knowledge of the Company, any consultants funds other than federal appropriated funds have been paid or agents will be paid to any Person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with a federal contract, grant, loan or cooperative agreement, the Acquired Companies have completed and submitted all appropriate forms and disclosures.
(n) Each Acquired Company, to the extent applicable, has an appropriate Contractor Code of Business Ethics and Conduct, an ongoing business ethics and business conduct awareness program, and an internal control system. The Acquired Companies’ internal control system facilitates timely discovery of material improper conduct in connection with Government Contracts and ensures material corrective measures are promptly instituted and carried out. Specifically, such internal control system provides for (1) periodic reviews of the Acquired Companies’ business practices, procedures, policies, and internal controls for compliance with the Contractor’s Code of Business Ethics and Conduct and the special requirements thereunder of government contracting; (2) an internal reporting mechanism by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports; (3) internal and/or external audits, as required; and (4) disciplinary action for improper conduct. This Section 3.33 contains the sole and exclusive representations and warranties of the Company or with respect to any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity government contract matters with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureAcquired Companies.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rti International Metals Inc)
Government Contracts. (a) Since Except as would not reasonably be expected to have, individually or in the Applicable Dateaggregate, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each a Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries Adverse Effect with respect to the Acquired Corporations: (i) none of the directors, officers or employees of any Government Contract or Company Bid were current, accurate and complete at the time of disclosure Acquired Corporation is (or have been formally corrected since February 2, 2018 has been) under administrative, civil or otherwise finally resolved with a criminal investigation or indictment by any Governmental EntityBody (except as to routine security investigations), in each case, in all material respects, as of their effective date.
; (cii) Since the Applicable Date through the date of this Agreement, there is no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing pending or, to the Knowledge of the Company, orally, that the Company threatened audit or investigation by any Governmental Body of any Acquired Corporation or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the their respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries employees with respect to any alleged material irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid; (iii) since February 2, 2018, no Acquired Corporation has made a disclosure with respect to any alleged irregularity, misstatement or omission arising under a Government ContractContract with or a Government Bid by any Acquired Corporation, other than routine inquiries, audits and reconciliations; and (iiiv) the Acquired Corporations have complied with the terms and conditions of each Government Contract and each Government Bid to which it is a party or subject to and all Legal Requirements applicable and pertaining to each such Government Contract and Government Bid.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Knowledge of the CompanyAcquired Corporations, there is are (i) no current outstanding claims against any Acquired Corporation by a Governmental Body or outstanding civil investigative demand by any prime contractor, subcontractor or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), vendor arising under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor with or Government Bid by any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects Acquired Corporation and (ii) since no disputes between a Governmental Body and any Acquired Corporation under the Applicable DateContract Disputes Act or any other applicable Legal Requirement or between any Acquired Corporation and any prime contractor, subcontractor or vendor arising under any such Government Contract with or Government Bid by an Acquired Corporation. Except as would not reasonably be expected to have, individually or in the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andaggregate, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.Material Adverse Effect
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but Other than has not limited tohad, and as may would not reasonably be applicableexpected to have, individually or in the Truthful Cost and Pricing Data Act; aggregate, a Company Material Adverse Effect: (i) the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures warranties made by the Company and its Subsidiaries with respect to any Government Contract or Contracts were accurate as of their effective dates, and the Company Bid were current, accurate and complete at the time of disclosure (or its Subsidiaries have been formally corrected or otherwise finally resolved with a Governmental Entity), in each casecomplied, in all material respects, as with all such certifications and terms and conditions of each Government Contract; (ii) none of the Company or its Subsidiaries has received an adverse or negative government past performance evaluation or rating for the past three years; and (iii) to the extent applicable, the Company and its Subsidiaries have complied with all requirements concerning the sale of their effective dateproducts via the GSA Schedule, including all pricing discounts and funding fee reporting.
(cb) Since Other than has not had, and would not reasonably be expected to have, individually or in the Applicable Date through the date aggregate, a Company Material Adverse Effect: (i) none of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company and its Subsidiaries has received any written show cause, cure, deficiency, default, termination for convenience, or similar notice relating to any of its SubsidiariesCurrent Government Contract; (ii) no termination for default, in writing cure notice or show cause notice has been issued or, to the Knowledge of the Company, orallythreatened, in writing; and (iii) to the Knowledge of the Company, no event, condition, or omission has occurred or currently exists that would constitute grounds for such action.
(c) None of the Company or its Subsidiaries, nor, to the knowledge of the Company, any of their current respective directors, officers or employees in connection with the performance of the duties for, or on behalf of, the Company or any of its Subsidiaries hasSubsidiaries, is currently debarred or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to suspended from bidding on any Government Contract or Government Subcontract, declared nonresponsible or ineligible, or otherwise excluded from participation in the award of any Government Contract or Government Subcontract or for any reason been listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs in a manner that will materially impact the Company Bidor its Subsidiaries’ performance of such Government Contract or Government Subcontract.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company or its Subsidiaries has been debarred undergone or suspendedis currently undergoing any internal or external regulatory audit, review, inspection, investigation, survey, or examination of records relating to the Knowledge of the Company proposed for a finding of debarment any Government Contracts or suspensionGovernment Subcontracts, from participation other than in the award ordinary course of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements)business.
(ie) As of the date of this AgreementExcept as would not be material, (i) no costs incurred by the Company individually or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of aggregate, to the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity taken as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicablewhole, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since has not received any written notice that any Government Contract or Government Subcontract is currently the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) subject of bid or otherwise award protest proceedings and, to the Knowledge of the Company, no circumstances have existed since Government Contract is reasonably likely to become the Applicable Date that subject of bid or award protest proceedings; and (ii) neither any Governmental Entity nor any prime contractor or higher tier subcontractor under a Government Contract or Government Subcontract has offset, disallowed or disputed in writing any invoices or requests for payment claimed by the Company or any of its Subsidiaries under any Government Contracts or Government Subcontracts.
(f) Except as would have warranted such not be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a reportwhole, the Company and its Subsidiaries possess all facility clearances, and employees of the Company and its Subsidiaries possess all personnel security clearances, required to perform the applicable Government Contracts. The Company has no Knowledge of any pending revocation of any facility clearance of the Company or any Subsidiary of the Company or any pending revocation of any personnel security clearance of any employee of the Company or any Subsidiary of the Company.
Appears in 1 contract
Samples: Merger Agreement (Microsemi Corp)
Government Contracts. (a) Since Except as set forth on Schedule 3.23(a):
(i) To Seller’s Knowledge, Seller’s and RSI’s cost accounting, material management, quality control, and procurement systems, in each case with respect to the Applicable DateGovernment Contracts, are in compliance in all material respects with all laws and regulations;
(ii) To the Company Knowledge of Seller, (A) Seller and its Subsidiaries have RSI each has complied with all material terms and conditions of, and are not in material breach or default of, each Government Contract and all clauses, provisions and requirements included expressly, by reference or by operation of law therein, (B) Seller and RSI each has complied in all material respects with the terms and conditions of all Legal Requirements pertaining to each Material Company Government Contract and Material Company Bid as required(C) all representations and certifications executed, including all clauses, provisions and requirements incorporated expressly by reference acknowledged or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses set forth in any Material Company or pertaining to each Government Contract or Material Company Bid).were complete and correct in all material respects as of their effective date and Seller and RSI each has complied in all material respects with all such representations and certifications;
(biii) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries Neither Seller nor RSI has received a final decision of a government contracting officer or other contractor or any other Person asserting any claim or equitable adjustment or breach against Seller or RSI with respect to any Government Contract and there are no material disputes as to which Seller or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved RSI has received notice in writing with a Governmental Entity), in each case, in all material respects, as of their effective date.respect to any Government Contract;
(civ) Since To the Applicable Date through Knowledge of Seller, during the three (3) year period prior to the date of this Agreement, no Governmental Entity neither the United States Government nor any prime contractor or nor subcontractor has notified the Company Seller or RSI in writing, and neither Seller nor RSI has notified any of its Subsidiaries, Third Party in writing or, to the Knowledge of the Company, orallywriting, that the Company Seller or any of its Subsidiaries has, or is alleged to have, RSI has materially breached or materially violated in any Legal Requirement, any material respect any Law, representation, certification, disclosure, clause, provision provision, requirement, or requirement certification pertaining to any Government Contract or Company Bid.
(d) To the Knowledge Contract, provided that for purposes of the Companyforegoing, neither the Company nor a breach or violation shall not include any of its Subsidiaries has, since the Applicable Date, received breach or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim violation that has been formally corrected or otherwise finally resolved with to the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws satisfaction of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a relevant non-breaching party.;
(fv) To During the Knowledge of the Company, as of three (3) year period prior to the date of this Agreement, there exists no outstanding asserted disputes neither the United States government nor any prime contractor nor subcontractor has notified Seller or claims RSI in writing and neither Seller nor RSI has notified any Third Party in writing, that Seller or RSI has breached or violated any Legal Requirement, representation, clause, provision, requirement, or certification pertaining to any Government Contract, where the breach or violation described in this Section 3.23(a)(v), individually or in the aggregate, would have a Material Adverse Effect;
(vi) No termination for an amount convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any Government Contract;
(vii) No aggregated costs in excess of One Hundred Thousand Dollars ($25,000,000 between the Company 100,000) incurred by Seller or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating RSI pertaining to any Government Contract have been formally questioned or Company Bid.challenged, or have been disallowed in any manner by the United States Government;
(gviii) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts No money due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Seller or any of its Subsidiaries RSI pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, off nor has any claim been made to withhold or set off moneysuch money and, to the Knowledge of Seller, except for adjustments in the ordinary course of business, each caseof Seller and RSI is entitled to all payments, in including progress payments, received with respect to any Government Contract; and
(ix) Neither Seller nor RSI has received any written notices of product or service warranty claims or obligations pertaining to any Government Contract that exceed an aggregate amount in excess of One Hundred Thousand Dollars ($10,000,000100,000).
(jb) Since the Applicable DateExcept as set forth on Schedule 3.23(b), (i) to the Knowledge of Seller, neither Seller, with respect to the Company Business, nor any of its SubsidiariesRSI, nor any of the their respective directors, officers or employeesemployees that are engaged in the Business, nor, is (or during the three year period prior to the Knowledge date of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or this Agreement has been been) under administrative, civil or criminal investigation, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Body with respect to any alleged material violation of law, irregularity, misstatement or omission arising under or relating to any Government ContractContract (other than routine DCAA audits, in which no such violations of law, irregularities, misstatements or omissions were expressly identified); and (ii) during the last three (3) years, neither Seller, with respect to the Knowledge of the CompanyBusiness, there is no current nor RSI has conducted or outstanding civil investigative demand initiated any internal investigation or subpoena issued made a voluntary disclosure to the Company United States Government, with respect to any alleged violation of law, irregularity, misstatement or any of its Subsidiaries, nor any of its omission arising under or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureContract.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as set forth in Schedule 3.23(c), and all such security clearances are valid and in full force and effect. Since during the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
three (l3) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel year period prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicableAgreement, (i) Seller, with respect to the Company and its Subsidiaries comply Business, has not been (A) debarred or suspended or (B) notified of a proposed debarment or suspension, in each case from participation in the award of contracts with DFARS 252.204-7012any United States Government entity, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since RSI has not been (A) debarred or suspended or (B) notified of a proposed debarment or suspension, in each case from participation in the Applicable Dateaward of contracts with any United States Government entity, and (iii) neither Seller, with respect to the Company Business, nor RSI has been the subject of a finding of nonresponsibility or ineligibility for contracting with any United States Government entity (and its Subsidiaries have not submitted any cyber incident report pursuant in each case excluding ineligibility to DFARS 252.204-7012(c) bid on certain contracts due to generally applicable bidding requirements such as nonresponsiveness or otherwise and, to exclusion from a competitive range). To the Knowledge of the CompanySeller, there exist no facts or circumstances have existed since the Applicable Date that would have warranted such a reportwarrant the institution of suspension or debarment proceedings by any United States Government entity against, or the finding of non-responsibility or ineligibility for contracting with any United States Government entity on the part of, Seller (with respect to the Business) or RSI.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Eastman Kodak Co)
Government Contracts. (a) Since the Applicable DateWith respect to each Government Contract, since January 1, 2015: (i) (A) the Company and each of its Subsidiaries Subsidiaries, as applicable, have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting StandardsContract; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”B) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, as applicable, have complied in writing or, all material respects with all requirements of all applicable Laws or agreements pertaining to such Government Contract and (ii) to the Knowledge of the Company, orally(A) all representations and certifications set forth in or pertaining to such Government Contract were true and complete in all material respects as of their effective date, that and the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any one of its Subsidiaries has received any written orcomplied in all material respects with all such representations and certifications; (B) neither a Governmental Authority, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or nor any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither has notified the Company nor or any of its Subsidiaries in writing that the Company or any of its Subsidiaries has received in writing breached or violated any material adverse or negative past performance evaluations or ratings in connection with any Material Company applicable Law pertaining to such Government Contract by any Governmental Entity
Contract; (h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (iC) no costs incurred condition exists or event has occurred that (whether with or without notice or lapse of time or both) would constitute a default by the Company or any of its Subsidiaries under any Government Contract, except for defaults that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; (D) no cost incurred by the Company or its Subsidiaries pertaining to any individual Company such Government Contract have is the subject of any investigation or has been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing disallowed by a the relevant Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved Authority; and (iiE) no payment money due to the Company or any of its Subsidiaries pertaining pursuant to any Material Company such Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(jb) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to To the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such)there is no pending, is or and since December 31, 2015 there has been under administrativeno, civil audit or criminal investigation, indictment or criminal information investigation by any a Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularityimproper activity, misstatement or omission arising under or relating to any Government Contract. Since December 31, (ii) to the Knowledge of the Company2015, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written a voluntary disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) with respect to any Governmental Entityalleged improper activity, and no circumstances have existed that would have warranted such misstatement or omission arising under or relating to a disclosureGovernment Contract.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsTo the Knowledge of the Company, and all such security clearances are valid and in full force and effect. Since none of the Applicable DateEmployees, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding distributors, consultants or agents of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent is, or its outside legal counsel prior to the date of this Agreement since December 31, 2015 has been (except as to routine security investigations), under administrative, civil or criminal investigation, indictment or information by any Governmental Authority. None of the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicableCompany, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted or any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andof their respective employees or, to the Knowledge of the Company, no circumstances have existed distributors, consultants or agents is (or since December 31, 2015 has been) suspended or debarred from doing business with a Governmental Authority or is (or during such period was) the Applicable Date that would have warranted such subject of a reportfinding of non-responsibility or ineligibility for contracting with a Governmental Authority.
Appears in 1 contract
Government Contracts. (a) Since Section 4.19(a) of the Applicable DateDelta/Ultra Disclosure Schedule sets forth as of the date hereof a current, complete and accurate list of the 19 highest revenue generating Government Contracts of the Ultra Entities, as measured on an annual basis with respect to the current fiscal year, the Company period of performance of which has not yet expired or terminated or for which final payment has not yet been received. Except for organizational conflicts of interest arising in connection with the transactions contemplated by the Transaction Agreements, to the Knowledge of Ultra, each Government Contract of the Ultra Entities is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against the Ultra Entities and, to the Knowledge of Ultra, against the other parties thereto, in accordance with its Subsidiaries terms (and subject to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies). An Ultra Contracting Entity is party to each Government Contract and Government Bid related to the Ultra Business.
(b) Except as set forth in Section 4.19(b) or 4.8 of the Delta/Ultra Disclosure Schedule, with respect to the Ultra Entities’ Government Contracts and Government Bids related to the Ultra Business, to the Knowledge of Ultra, during the last three years: (i) the Ultra Entities have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredGovernment Bid, including all clauses, provisions provisions, specifications and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and any applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in Laws pertaining to any Material Company such Government Contract or Material Company Government Bid).
; (bii) Since the Applicable Date, all representations, certifications certifications, disclosures and disclosures made warranties acknowledged or submitted by or on behalf of the Company and its Subsidiaries Ultra Entities with respect to any each such Government Contract or Company Government Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective date.
the respective dates they were made and the Ultra Entities have complied in all material respects with all such representations, certifications, disclosures and warranty requirements; (ciii) Since no Ultra Entity has terminated any Government Contract, and the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has Ultra Entities have not been notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the CompanyUltra, orally, that by the Company U.S. Government or any prime contractor that any such Government Contract has been terminated for convenience, for default or for any reason (other than upon the expiration of its Subsidiaries hasterms or in connection with the completion of the applicable services thereunder) and no Ultra Entity has received a cure notice, show cause notice, deficiency notice, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement default notice pertaining to any Government Contract or Company Bidof any Ultra Entity that is currently in effect.
(dc) To the Knowledge Except as set forth in Section 4.19(c) of the CompanyDelta/Ultra Disclosure Schedule, neither with respect to the Company nor any Ultra Entities’ Government Contracts and Government Bids relating to the Ultra Business, during the last three years all Cost or Pricing Data, sales, pricing and discount information submitted in support of its Subsidiaries hasa General Services Administration, since Federal Supply Schedule proposal or Government-wide Acquisition Contract and other information submitted by an Ultra Entity in support of the Applicable Datenegotiation of such Government Contracts and Government Bids, received or is subject to any notice modifications thereto, or in support of termination requests for conveniencepayment thereunder, notice were, as of termination for defaultthe date of price agreement, stop work orderpayment or submission, current, accurate and complete in all material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (orrespects and compliant, in the case of Contracts governed by Laws other than the state or federal Laws of the United Statesall material respects, the functional equivalents thereof, if any) pertaining to with any Material Company Government Contract, and, since the Applicable Date, no Governmental applicable Laws. No Ultra Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any notice, either written or, to the Knowledge of the CompanyUltra, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in orally, of any material respect its relationship with the Company alleged mischarging or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge other defective pricing in violation of the Company, oral claim (other than any such claim that has been formally corrected Truth in Negotiations Act or otherwise finally resolved with the applicable Governmental Entity) under cost principle set forth in the United States civil FAR or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one handCost Accounting Standards, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, there are: (i) no costs incurred reports that have been issued resulting from any audits, reviews, surveys or other investigations conducted by the Company Defense Contract Audit Agency or other U.S. Governmental Entity of any of its Subsidiaries pertaining to the Government Contracts (past or present) that conclude that any individual Company Government Contract have been questionedUltra Entity engaged in material overcharging, proposed for disallowance, mischarging or deemed finally disallowed, defective pricing practices or in each case, any other practice in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements material violation of the Company and its Subsidiaries, FAR or otherwise resolved the Cost Accounting Standards; and (ii) no payment due audits, reviews, surveys or investigations by U.S. Governmental Entities of any Government Contracts (past or present), which are either ongoing or have been completed but the report of which has not been issued (and is reasonably expected to the Company be issued) and which are reasonably expected to recommend material cost disallowances, fines, penalties or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000other sanctions.
(jd) Since the Applicable Date, (iExcept as set forth in Section 4.19(d) neither the Company nor any of its Subsidiaries, nor any of the respective directorsDelta/Ultra Disclosure Schedule, officers no Ultra Entity or employees, nor, to the Knowledge Principal of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), Ultra Entity is or during the last three years has been under administrative, civil or criminal investigation, indictment or criminal information by any U.S. Governmental Entity. To the Knowledge of Ultra, there has not been, and there is not currently pending or threatened, any material audit, survey, review or investigation by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material or actual irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid related to the Ultra Business that could reasonably be expected to give rise to: (i) liability under the federal False Claims Act or similar state statute; (ii) a claim for price adjustment under the Truth in Negotiations Act, or (iii) any request for a reduction in the price of any Government Contract. In connection with the Ultra Business, during the last three years, no Ultra Entity: (A) has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any material alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid that could reasonably be expected to give rise to (1) liability under the federal False Claims Act or similar state statute, (2) a claim for price adjustment under the Truth in Negotiations Act, or (3) any request for a reduction in the price of any Government Contract, or (iiB) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure provisions to any Governmental Entity with respect to credible evidence of a violation of federal criminal law involving the fraud, conflict of interest, bribery or gratuity provisions found in Title 18 of the United States Code, a violation of the civil False Claims Act, or a significant overpayment in connection with the award, performance or closeout of any Government Contract, and to the Knowledge of Ultra, there are no facts that would require mandatory disclosure under the FAR.
(e) Except as set forth in Section 4.19(e) of the Delta/Ultra Disclosure Schedule, no Ultra Entity or director, officer or other Principal of any Ultra Entity, is or during the last three years has been suspended, debarred or, to the Knowledge of Ultra, proposed for suspension or debarment from participation in, or the award of, any Government Contract. Additionally, to the Knowledge of Ultra, no facts or circumstances exist that would warrant the institution of suspension or debarment proceedings on the part of any Ultra Entity or any director, officer or other Principal of any Ultra Entity or a finding of non-responsibility with respect to any outstanding Government Bid.
(f) No Ultra Entity has within the past year received any past performance evaluations, ratings or reports in connection with any Government Contract related to the Ultra Business with (i) an overall rating that is less than “satisfactory” or (ii) a determination that the customer would not recommend such Ultra Entity for future work.
(g) Except as set forth in Section 4.19(g) of the Ultra Disclosure Schedule, and excluding claims for payment provisions in the ordinary course of performance of any Government Contract related to the Ultra Business, to the Knowledge of Ultra (includingi) no material payment due to any Ultra Entity pertaining to a Government Contract has been withheld, but not limited torecouped, FAR 52.203or set-13(b)(3off, nor has any material claim been made to withhold, recoup or set-off any payment (except as may be required as a standard withholding in accordance with the payment or award fee terms of the applicable Government Contract); and (ii) none of the U.S. Government Contracts has incurred a material cost overrun at contract completion, in excess of any amount accrued in accordance with GAAP on Ultra’s financial statements filed with the SEC, except in the case of clauses (i) and (ii) above, for such withholdings, recoupment, set-offs and cost overruns that would not, individually or in the aggregate, constitute an Ultra Material Adverse Effect. No Ultra Entity has any outstanding Government Bids that, if accepted or awarded, are reasonably expected to result in a material loss.
(h) Except as would not, individually or in the aggregate, constitute an Ultra Material Adverse Effect, no Ultra Entity and, to the Knowledge of Ultra, no director, manager, officer or employee of any Ultra Entity, or Person acting for or on behalf of any Ultra Entity or director, manager or officer thereof, has for the last three years: (i) used any funds for unlawful contributions, gifts, gratuities, entertainment or other unlawful expenses related to political activity; (ii) made any payment or offered, promised or authorized the payment of anything of value to any government official or employee or any political party or candidate for political office for the purpose of influencing any act or decision of such official or of any Governmental Entity to obtain or retain business or direct business to any Person in violation of Law; (iii) made any other payment in violation of Law to any official of any Governmental Entity, and no circumstances including bribes, gratuities, kickbacks, lobbying expenditures, political contributions or contingent fee payments; or (iv) violated any applicable money laundering or anti-terrorism law or regulation, nor have existed that any of them otherwise taken any action which would have warranted such a disclosurecause any Ultra Entity to be in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable law of similar effect.
(ki) The Company Ultra Entities, are in compliance in all material respects with all applicable national security obligations, including those specified in the NISPOM and its Subsidiaries requirements relating to mitigation of Foreign Ownership, Control or Influence (“FOCI”), and their respective employees possess have all of the facility and personnel security clearances necessary to perform conduct the business of the Ultra Business as currently being conducted in all Material Company Government Contractsmaterial respects. Section 4.19(i) of the Delta/Ultra Disclosure Schedule set forth true and complete lists of all facility security clearances held by the Ultra Entities with respect to the Ultra Business. The Ultra Entities hold and, at all relevant times since September 30, 2014 held, at least a “satisfactory” rating from the DSS and any other cognizant security authority with respect to all facility security clearances, the NISPOM, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all other applicable national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) obligations. The Company and its Subsidiaries Ultra Entities are not currently limited, prohibited under any restriction or otherwise restricted obligation arising from performing or bidding for any material work or material future business opportunities due prior failure to maintain a “organizational conflicts of interestsatisfactory” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company rating from DSS or any other cognizant security authority. The Ultra Entities are not aware of its Subsidiaries any FOCI factors as identified in Standard Form 328 that are not capable of being mitigated in connection with any Material Company Government Contract the Ultra Entities’ ability to enter into and made available to Parent or its outside legal counsel prior to perform their respective obligations set forth in the date of this Agreement (except to Transaction Agreements, including the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Separation Agreements.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (DXC Technology Co)
Government Contracts. Except as set forth in Section 3.11 of the Seller Disclosure Schedule:
(a) Since the Applicable Date, the Company and its Subsidiaries have With respect to any Government Contract or Government Bid (i) Seller has complied in all material respects with the all material terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Government Bid).
; (bii) Since the Applicable DateSeller has complied with all material requirements of all applicable laws, all representationsregulations, certifications and disclosures made by the Company and its Subsidiaries with respect written directives, or agreements pertaining to any each Government Contract or Company Government Bid were currentand to Seller's performance on its Government Contracts; and (iii) all material representations and certifications executed, accurate acknowledged or set forth in, or pertaining to each Government Contract or Government Bid were, when given, and complete at to the time of disclosure (extent any such representation or certification pertains to future events which have been formally corrected or otherwise finally resolved with a Governmental Entity)yet to occur are presently complete, in each case, correct in all material respects, as of their effective dateand Seller has complied with all such representations and certifications.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(ib) As of the date of this Agreement, Seller has not received from a party to a Government Contract any written show-cause notice, stop work order, cure notice, notice of termination, or termination concerning a Government Contract.
(c) Seller has not received a written negative determination of responsibility concerning a Government Bid.
(d) Seller has no Knowledge of a request within three years prior to the date hereof by any Government Authority for a contract price adjustment including, without limitation, based upon (i) no costs a claim by any Government Authority of defective pricing or (ii) any cost incurred by Seller that has been questioned, challenged or disallowed or has been the Company subject of any investigation, and no money due to Seller has been (or has been attempted to be) withheld or set off with respect to any Government Contract, which contract price adjustment, withheld or set off amount is reasonably expected to have a Seller Material Adverse Effect.
(e) To Seller's Knowledge, neither Seller nor or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or officers, employees, nor, to the Knowledge of the Company, any consultants or agents of is (or for the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information or equivalent official government charge or allegation by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Authority with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) Contract or Government Bid. Seller has not conducted or initiated any internal investigation or made a voluntary disclosure to the Knowledge of the CompanyU.S. Government with respect to any alleged irregularity, misstatement, omission or other matter in connection with any Government Contract and/or Government Bid. To Seller's Knowledge, there is no current irregularity, misstatement or outstanding civil investigative demand omission or subpoena issued to the Company other matter arising under or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract or Government Bid that has led or could reasonably be expected to lead, either before or after the Closing, to a Seller Material Adverse Effect.
(f) There exist (i) no outstanding claims or requests for equitable adjustment or other contractual action for relief against Seller, either by a Government Authority or by any prime contractor, subcontractor, vendor or other Person, arising or relating to any Government Contract or Government Bid, and (iiiii) no disputes between Seller and the U.S. Government under the Contract Disputes Act of 1978, as amended (the "Contract Disputes Act") or between Seller and any prime contractor, subcontractor, vendor or other person arising under or relating to any Government Contract or Government Bid. To Seller's Knowledge, Seller has no knowledge of any fact(s) which constitute the basis for and could reasonably be expected to result in a claim or dispute under clause (i) or (ii) of the immediately preceding sentence. Seller has no interest in any pending or potential material claim under the Contract Disputes Act against the U.S. Government or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Bid.
(g) To Seller's Knowledge, neither the Company Seller nor any of its Subsidiaries directors, officers, employees, consultants or agents, is (or for the last three years has made been) suspended or debarred or proposed to be suspended or debarred or declared ineligible from doing business with any written disclosure under Government Authority or is the FAR mandatory disclosure subject of a finding of nonresponsibility or payment provisions (includingineligibility for contracting with any Government Authority. To Seller's Knowledge, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no facts or circumstances have existed exist that would have warranted warrant or could reasonably lead to the institution of suspension or debarment proceedings or the finding of nonresponsibility or ineligibility on the part of Seller or any such a disclosuredirector, officer, employee, consultant or agent.
(kh) The Company and its Subsidiaries and their respective employees possess To Seller's Knowledge, the cost accounting systems with respect to Government Contracts of Seller are in compliance in all facility and personnel security clearances necessary material respects with all applicable laws.
(i) To Seller's Knowledge, it has engaged in no conduct that could lead to perform all Material Company Government Contractsthe imposition of Liability relating to mischarging, fraud, false claims, false certifications, and all such security clearances are valid and in full force and effect. Since the Applicable DateForeign Corrupt Practices Act.
(j) To Seller's Knowledge, the Company and its Subsidiaries have Seller has fully complied in all material respects with all security of its obligations incorporated in any Material Company under Government Contract and all national security obligations applicable to the Company and its Subsidiaries Contracts relating to any government furnished property or similar property or equipment owned by the safeguarding United States or any contractor.
(k) To Seller's Knowledge, Seller is not in violation of and access (i) any laws, directives, or regulations relating to security clearances of the protection of classified information; (ii) its security agreements relating thereto; or (iii) any laws, including those specified in the National Industrial Security Program Operating Manualdirectives, 32 C.F.R. Part 117or regulations relating to export controls.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by For the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date purposes of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicableAgreement, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012term "Government Bid" shall mean any written quotations, Safeguarding Covered Defense Information and Cyber Incident Reporting bids or proposals that, if accepted, would bind any Person to perform the resultant Government Contract to furnish products or services to (A) any Government Authority, (B) any prime contractor of any Government Authority, or (C) any subcontractor, at any tier level, to any contract described in all material respects and clauses (A) or (B) above; (ii) since the Applicable term "Government Contract" shall mean a written, mutually binding legal relationship with (A) any Government Authority, (B) any prime contractor of any Government Authority, or (C) any subcontractor, at any tier level, to any contract described in clauses (A) or (B) above which obligates any Person to furnish products or services to a Government Authority, to which Seller is a party on or as of the Closing Date; and (iii) the term "Government Authority" shall mean the U.S. Government and any and all agencies, commissions, branches, instrumentalities and departments thereof; provided, however, that the Company term Government Contract shall not include any completed agreement which Seller is not assigning and its Subsidiaries have for which Buyer is not submitted assuming any cyber incident report Liabilities pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportthis Agreement.
Appears in 1 contract
Government Contracts. Except as disclosed in Schedule 3.1.23, with -------------------- --------------- respect to each Government Contract or Bid to which Roche, any Subsidiary or any Associated Company is a party:
(a) Since the Applicable DateRoche, the Company Subsidiaries and, to the knowledge of Vendors, the Associated Companies, obtained each Government Contract in compliance with all Laws relating to procurement and its ethical business practices;
(b) Roche, the Subsidiaries and, to the knowledge of Vendors, the Associated Companies, have fully complied with all material terms and conditions and have complied in all material respects with the terms and conditions all applicable requirements of each Material Company Government Contract and Material Company Bid as requiredLaw or agreement, including all clauseswhether incorporated expressly, provisions and requirements incorporated expressly by reference or by operation of Law therein Law;
(including, but not limited to, c) all representations and as may be applicablecertifications of Roche, the Truthful Cost and Pricing Data Act; Subsidiaries and, to the Service Contract Act; knowledge of Vendors, the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”)Associated Companies, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respectsrespects when made, as and Roche, the Subsidiaries and, to the knowledge of their effective date.Vendors, the Associated Companies, have fully complied with all such representations and certifications;
(cd) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor allegation has notified the Company or any of its Subsidiaries, been made in writing that Roche, the Subsidiaries or, to the Knowledge knowledge of Vendors, the CompanyAssociated Companies, orallyare in breach or violation of any statutory, regulatory or contractual requirement or that the Company such breach or any of its Subsidiaries has, violation will not be waived or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.cannot be cured;
(de) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility has been issued with respect to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United StatesRoche, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge knowledge of Vendors, the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.Associated Companies;
(ef) Since no cost incurred by Roche, the Applicable Date, no material written Subsidiaries or, to the Knowledge knowledge of Vendors, the CompanyAssociated Companies, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity their subcontractors has been questioned or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.disallowed; and
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount money in excess of Twenty-Five Thousand dollars (Cdn $10,000,000, which costs have not been reserved, reflected 25,000) in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment aggregate due to Roche, the Company or any Subsidiaries or, to the knowledge of its Subsidiaries pertaining to any Material Company Government Contract Vendors, the Associated Companies, has been withheld or set off or is currently being threatened to be withheld or set off, nor has any claim been made other than retentions held by a customer in the ordinary course of business that will be ultimately paid. None of Roche, the Subsidiaries or, to withhold or set off moneythe knowledge of Vendors, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its SubsidiariesAssociated Companies, nor any of their directors or officers are (or for the respective directorslast two (2) years has been), officers or employeesnor has Roche, norany Subsidiary or, to the Knowledge knowledge of Vendors, the CompanyAssociated Companies, received written notice that any consultants employee of Roche, the Subsidiaries or agents of the Company Associated Companies is (or any of its Subsidiaries for the last two (in each case in their capacity as such), is or 2) years has been been) (i) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award information, audit or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, internal investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission regarding a Government Contract or Bid; or (ii) suspended or debarred from doing business with any Governmental Body or declared non- responsible or ineligible for government contracting. None of Roche, the Subsidiaries nor, to the knowledge of Vendors, any of the Associated Companies, has made a voluntary disclosure to any Governmental Body with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government ContractContract or Bid. To the knowledge of Vendors, there are no circumstances that would warrant the institution of suspension or debarment proceedings or the finding of non- responsibility or ineligibility on the part of Roche, any Subsidiary or any Associated Company for Government Contracts or Bids in the future. Other than as set forth in Schedule 3.1.23, within the last two (ii2) --------------- years, no Governmental Body or any prime contractor, subcontractor or vendor has asserted any claim or initiated any dispute proceeding which is currently outstanding against Roche, any Subsidiary or, to the Knowledge knowledge of the Vendors, any Associated Company, there is no current or outstanding civil investigative demand or subpoena issued nor has Roche, any Subsidiary or, to the Company knowledge of Vendors, any Associated Company, asserted in writing any claim or initiated any of its Subsidiariesdispute proceeding, nor directly or indirectly, against any of its or their respective directorssuch party, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to concerning any Government Contract and (iii) neither or Bid. To the Company nor any knowledge of its Subsidiaries has made any written disclosure under Vendors, there are no facts upon which such a claim or dispute proceeding may be based in the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed future that would have warranted such result in a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary liability to perform all Material Company Government ContractsRoche, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company Subsidiary or any Associated Company in excess of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement Ten Thousand dollars (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar LawCdn $10,000).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Government Contracts. (a) Since In connection with the Applicable Date, business of the Company and its Subsidiaries:
(a) With respect to each Government Contract and Government Subcontract, since January 1, 2000 (i) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Subcontract, including all clauses, provisions and requirements incorporated expressly expressly, by reference reference, or by operation of Law therein law therein; (ii) each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all applicable Laws or agreements pertaining to such Government Contract or Government Subcontract, including, but not limited to, and as may be where applicable, the Truthful Cost Truth in Negotiations Act and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Company's Cost Accounting StandardsStandards disclosure statement, if any; (iii) all representations and applicable and material Federal Acquisition Regulation (“FAR”)certifications executed, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications Government Subcontract were complete and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, correct as of their effective date.
date and each of the Company, its Subsidiaries and their respective Affiliates have complied in all material respects with all such representations and certifications; (civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity Authority nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company, its Subsidiaries or any of their respective Affiliates, either in writing or orally, that the Company, its Subsidiaries or any such Affiliate has breached or violated any enactment, certification, regulation, representation, clause, provision or requirement pertaining to such Government Contract or Government Subcontract; (v) no termination for convenience, termination for default, cure notice, show cause notice, or stop work order is currently in effect pertaining to such Government Contract or Government Subcontract; (vi) to the Knowledge of the Company, no cost incurred by the Company, its Subsidiaries or any of their respective Affiliates pertaining to such Government Contract or Government Subcontract has been challenged, is the subject of any audit or investigation or has been disallowed by any Governmental Authority and (vii) no money due to the Company or any of its SubsidiariesSubsidiaries pertaining to such Government Contract or Government Subcontract has been withheld, in writing orreduced or set off nor has any claim been made to withhold or set off money and, to the Knowledge of the Company, orally, that the Company or any of and its Subsidiaries has, or is alleged are entitled to have, breached or violated in any material all progress payments received with respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bidthereto.
(db) To the Knowledge None of the Company, neither the Company nor its Subsidiaries or any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity hastheir respective Affiliates nor, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of their respective directors, officers, employees, consultants or agents is, or since January 1, 2000 has been, under administrative, civil or criminal investigation, indictment or information by any Governmental Authority or any audit or investigation by the Company, its Subsidiaries has received or any written orof their respective Affiliates with respect to any alleged act or omission arising under or relating to any Government Contract or Government Subcontract and since January 1, to the Knowledge 2000, none of the Company, oral notice from its Subsidiaries or any of their respective Affiliates has conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity pertaining Authority with respect to any Material Company alleged act or omission arising under or relating to a Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its SubsidiariesGovernment Subcontract.
(ec) Since the Applicable Date, There are (i) no material written or, to the Knowledge of outstanding claims against the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiariestheir respective Affiliates, on the one hand, and either the applicable by any Governmental Entity Authority or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract or Government Subcontract and (ii) no disputes between the Company, its Subsidiaries or their respective Affiliates, on the one hand, and the United States government, on the other hand, under the Contract Disputes Act or any other U.S. federal statute or between the Company, its Subsidiaries and their respective Affiliates, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract or Company BidGovernment Subcontract. None of the Company, its Subsidiaries and their respective Affiliates has any direct financial interest in any pending or potential claim against any Governmental Authority or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract.
(gd) Since the Applicable DateJanuary 1, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date2000, (i) neither the Company nor any none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, its Subsidiaries or any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries their respective Affiliates has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, suspended from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Authority; (ii) to the Knowledge of the Company, there is exist no current facts or outstanding civil investigative demand circumstances that would warrant the institution of suspension or subpoena issued to debarment proceedings or the Company finding of nonresponsibility or ineligibility on the part of the Company, its Subsidiaries or any of their respective Affiliates, or any director, officer or employee of the Company, its Subsidiaries or any of their respective Affiliates and (iii) the Company's and its Subsidiaries' cost accounting and procurement systems and the associated entries reflected in the Company's financial statements included in the Filed Company SEC Documents with respect to the Government Contracts and Government Subcontracts are in compliance in all material respects with applicable Laws.
(e) Since January 1, nor 2000, (i) all test and inspection results provided by the Company, its Subsidiaries or any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating Affiliates to any Governmental Authority pursuant to any Government Contract and (iii) neither or Government Subcontract or to any other Person pursuant to a Government Contract or Government Subcontract or as a part of the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) delivery to any Governmental EntityAuthority or other Person pursuant to a Government Contract or Government Subcontract of any article designed, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and engineered, manufactured or repaired by the Company, its Subsidiaries and or any of their respective employees possess Affiliates were complete and correct in all facility material respects as of the date so provided and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, (ii) the Company and its Subsidiaries have complied in provided all material respects with all security obligations incorporated in test and inspection results to any Material Company Governmental Authority or to any other Person pursuant to a Government Contract or Government Subcontract as required by applicable Law and all national security obligations the terms of the applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117Government Contract or Government Subcontract.
(lf) The Company and No statement, representation or warranty made by the Company, its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries their respective Affiliates to any Governmental Authority in connection with any Material Company Government Contract and made available or Government Subcontract or to Parent or its outside legal counsel prior to another party where the ultimate contracting party is a Governmental Authority contained on the date so furnished or submitted any untrue statement of this Agreement (except material fact, or failed to state a material fact necessary to make the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)statements contained therein, in light of the circumstances in which they are made, not misleading.
(mg) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable DateFor purposes of this Section 3.14, the Company term "Affiliates" shall be deemed to exclude natural persons and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted entities controlled by such a reportnatural persons.
Appears in 1 contract
Government Contracts. (ai) Since Except as would not reasonably be expected to, individually or in the Applicable Dateaggregate, the have a Material Adverse Effect or a Company and its Subsidiaries have complied in all material respects with the terms and conditions of Transaction Effect, (i) each Material Company Government Contract and Material Company Bid as requiredwas legally awarded, including all clauses(ii) to the knowledge of the Company, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material no Company Government Contract or proposal for the award of a Company Government Contract is, as of the date hereof, the subject of bid or award protest proceedings and (iii) neither the Company nor any of its Subsidiaries is in breach of or default under the terms of any Company Government Contract. Except as would reasonably be expected to have a Material Company Bid).
(b) Since Adverse Effect, since the Applicable Lookback Date, (A) all facts set forth or acknowledged by any representations, certifications and disclosures or statements made or submitted by or on behalf of the Company and its Subsidiaries or any Subsidiary in connection with respect to any Company Government Contract or Company Government Bid were currenttrue, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no submission and made by an authorized representative of the Company or any of its Subsidiaries and (B) neither any Governmental Entity nor any prime contractor or higher-tier subcontractor has notified the Company or any of its Subsidiaries, Subsidiaries in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Company Government Contract Contract. Except as would not reasonably be expected to have, individually or Company Bid.
(d) To in the Knowledge of the Companyaggregate, neither the Company nor any of its Subsidiaries hasa Material Adverse Effect, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Lookback Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i1) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, disallowed in writing by a Governmental Entity and in an amount in excess of $10,000,000or, which costs have not been reserved, reflected in to the consolidated financial statements knowledge of the Company and its SubsidiariesCompany, or otherwise resolved proposed for disallowance and (ii2) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor nor, to the knowledge of the Company, has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000any such payment.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date For purposes of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.Agreement:
Appears in 1 contract
Samples: Merger Agreement (HashiCorp, Inc.)
Government Contracts. (a) Since Section 5.13(a)(1) of the Applicable DateCompany Disclosure Schedule sets forth a current, complete and accurate list of all Government Contracts to which the Company or any of its Subsidiaries is party or pursuant to which the Company or any of its Subsidiaries has obligations, including contract number and contract value for the base years and separate value of all option years. Other than as set forth on Section 5.13(a)(2) of the Company Disclosure Schedule, neither the Company nor its Subsidiaries has, in connection with a Government Contract or Government Bid, (i) bid on or been awarded any “small business set aside contract”, any other “set aside contract” or other order or contract requiring small business or other preferred bidder status nor claimed or asserted any small business or other preferred bidder status; (ii) sold or agreed to sell to a Governmental Entity any product or service pursuant to an agreement or understanding that required the accumulation, allocating or reporting of costs; (iii) had or was required to have any security clearance or access to classified information; (iv) been audited by a Governmental Entity; (v) been subject to any Most Favored Customer pricing, tracking customer requirement or other pricing guarantee; (vi) had a written assessment of or determination regarding any actual or potential Conflict of Interest (“COI”) or had any COI mitigation plan or analysis submitted to, issued by or approved by any Governmental Entity or prime contractor; or (vii) engaged a distributor, reseller, sales representative, consultant, agent or lobbyist.
(b) Section 5.13(b) of the Company Disclosure Schedule attached hereto sets forth a current, accurate and complete list of every Government Bid for which (x) no Governmental Entity, prime contractor or higher-tier subcontractor has issued any Government Contract award notice, (y) to the knowledge of the Company, the Company has not been excluded from the competitive range or (z) the Company or any of its Subsidiaries has not otherwise received notice that the Government Bid was unsuccessful.
(c) With respect to each Government Contract and Government Bid and other than as set forth on Section 5.13(c) of the Company Disclosure Schedule: (i) there are no applicable overhead ceilings; (ii) there are no assignment of revenues or anticipated revenues, or any performance bond, guarantee or surety arrangements either in effect or required to be in effect; (iii) all pricing discounts have been properly reported to and credited to the customer; (iv) with the exception of notice of or knowledge that certain contract options will not be exercised, neither the Company nor its Subsidiaries has received any written (or, to the knowledge of the Company, any other) notice that the Governmental Entity, prime contractor, higher-tier subcontractor may stop or materially decrease purchasing, or materially alter the terms on which it purchases, products or services from the Company (whether as a result of the transactions contemplated hereby or otherwise); (v) the Company and each of its Subsidiaries fully expects and intends to fully perform all obligations under (and the Company and its Subsidiaries has or will obtain all Governmental Entity authorizations and all third-party certifications and approvals necessary and required in order to perform) each Government Contract it presently has or which may be awarded to the Company or it is Subsidiaries; (vi) none of the Company, its Subsidiaries or any of their respective directors, officers, or employees have had access to confidential or non-public information to which, to the knowledge of the Company, they are or were not lawfully entitled; and (vii) none of the Company, its Subsidiaries or any of their respective senior management employees has violated any applicable Law or administrative or contractual restriction associated with the employment of (or discussions concerning possible employment with) current or former officials or employees of a Governmental Entity (regardless of the branch of government).
(d) (i) the Company and its Subsidiaries have complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited toContracts, and as may be applicable, (ii) neither the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity U.S. government nor any prime contractor contractor, subcontractor or subcontractor other Person has notified provided written (or, to the knowledge of the Company, any other) notice to the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, have materially breached or violated in any material respect any Law, certification, representation, certification, disclosure, clause, clause or provision or requirement pertaining to of any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither Government Bid or provided to the Company nor or any of its Subsidiaries has, since the Applicable Date, received or is subject to any with notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company cost disallowance, withhold, offset, overpayment or its Subsidiariescredit requested by or on behalf of a Governmental Entity.
(e) Since (i) all invoices and claims for payment, reimbursement or adjustment submitted by the Applicable DateCompany and its Subsidiaries since January 1, no 2010 were current, accurate and complete in all material written orrespects as of their respective submission dates, to the Knowledge of and (ii) all adjustments, discounts, rebates and reimbursements required under a Government Contract or requested by a Governmental Entity have been promptly credited and accounted for in the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party’s financial records.
(f) Except any terminations for convenience, no notice of termination for any reason and no cure notice, show cause notice or other indication of termination is currently, or since January 1, 2012 has been, in effect pertaining to any such Government Contract.
(g) To the Knowledge knowledge of the Company, as of the date of this Agreement, there exists exist no outstanding asserted material claims or disputes or claims for an amount in excess of $25,000,000 between with the Company or any of its Subsidiaries, on either by the one hand, and either the applicable Governmental Entity U.S. government or by any prime contractor, subcontractor, vendor or other Personthird party, on nor has the Company or its Subsidiaries asserted or received in writing any requests for equitable adjustments, claims or other handassertions of a dispute that have not already been fully resolved and accounted for in the Company’s financial records, arising under or relating to any Government Contract or Company Government Bid.
(gh) Since None of the Applicable DateCompany, its Subsidiaries or, to the knowledge of the Company, any of their respective officers, directors, principals, senior management or employees has been debarred, suspended or excluded from participation in the award of any Government Contract for any reason listed on the “List of Parties Excluded from Federal Procurement and Nonprocurement Programs” or has any debarment, suspension or exclusion proceeding or, to the knowledge of the Company, any debarment, suspension or exclusion investigation or audit, been threatened or initiated against the Company or any of its Subsidiaries or to the knowledge of the Company, any of their respective officers, senior management, or employees.
(i) To the knowledge of the Company, none of the Company, any of its Subsidiaries nor any of their officers, senior management, or employees is (or since January 1, 2012 has been) under or subject to any administrative, civil or criminal investigation, indictment, information lawsuit, subpoena, document request, administrative proceeding, mediation, arbitration or other proceeding involving or related to the Company, any of its Subsidiaries or any of their respective officers or employees with respect to an alleged or potential violation of a contract requirement or Law pertaining to any Government Contract or Government Bid.
(j) Except as set forth on Section 5.13(j) of the Company Disclosure Schedule, since January 1, 2012, neither the Company nor any of its Subsidiaries nor their officers, directors nor principals has received in writing conducted or initiated any material adverse internal investigation, or negative past performance evaluations made a voluntary or ratings in connection with any Material Company Government Contract by mandatory disclosure to any Governmental Entity
, or other prime contractor or higher-tier subcontractor or received written (h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge knowledge of the Company, oral) notice and there have not been any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitallegations of, or fraud, any audit or, to the Knowledge disclosures of the Company, investigation of the Company or any of its Subsidiaries credible evidence with respect to any alleged or possible mis-charging, mis-pricing, improper billing or invoicing, failure to perform in accordance with contractual obligations, false or reckless claims or fraud, unremitted material overpayments, or other irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureGovernment Bid.
(k) The Company and each of its Subsidiaries maintain systems of internal controls that are in material compliance with all relevant and their respective employees possess all facility applicable requirements of the Company’s and personnel security clearances necessary to perform all Material Company its Subsidiaries’ Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company All representations, certifications and its Subsidiaries are not currently limitedstatements executed, prohibited acknowledged or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by or on behalf of the Company to a Governmental Entity, prime contractor or any of its Subsidiaries higher-tier subcontractor in connection with any Material Company Government Contract and made available to Parent (or its outside legal counsel prior change or modification thereto) since January 1, 2012 were, to the date knowledge of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)Company, current, accurate and complete in all material respects as of their respective effective dates.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, each Government Contract has been lawfully issued in the name of the Company or one of its Subsidiaries as appropriate. The Company has no circumstances have existed since information indicating that any Government Contract has not been lawfully issued. Each Government Contract has been lawfully assigned or novated in the Applicable Date that would have warranted such a reportname of the Company or one of its Subsidiaries as appropriate.
Appears in 1 contract
Samples: Merger Agreement (Sutron Corp)
Government Contracts. Except as set forth on Schedule 2.20:
(a) Since To the Applicable Dateknowledge of CSC and the Seller, with respect to each and every Government Contract (as defined below) or outstanding Bid (as defined below) to which the Company and its Subsidiaries have Dyn International Companies is a party: (i) each of the Dyn International Companies has complied in all material respects with the all material terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein therein; (ii) each of the Dyn International Companies has complied in all material respects with all applicable requirements of statute, rule, regulation, order or agreement with the U.S. Government pertaining to such Government Contract or Bid (including, but not limited towithout limitation, and (A) the Truth in Negotiations Act of 1962, as may be applicableamended, the Truthful Cost and Pricing Data Act; (B) the Service Contract Act of 1965, as amended, (C) the Contract Disputes Act of 1978, as amended, (D) the Office of Federal Procurement Policy Act; , as amended, (E) the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; Federal Acquisition Regulations or any applicable agency supplement thereto, (F) the Cost Accounting Standards; , (G) the Defense Industrial Security Manual (DOD 5220.22-M), and applicable and material Federal Acquisition (H) the Defense Industrial Security Regulation (“FAR”DOD 5220.22-R) or any related security regulations); (iii) all representations and certifications executed, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
, and each of the Dyn International Companies has complied in all material respects with all such representations and certifications; (civ) Since neither the Applicable Date through the date of this AgreementU.S. Government, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor any other person has notified the Company or any of its Subsidiariesthe Dyn International Companies, in writing orwriting, to the Knowledge that any of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, Dyn International Companies has breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement Law pertaining to any such Government Contract or Bid that is reasonably likely to result in a Company Bid.
Material Adverse Effect; (dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice has been issued and not resolved or cured; (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsvi) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs cost incurred by the Company Dyn International Companies has been questioned in writing or disallowed since March 28, 2003 other than those which have been resolved; and (vii) no money due to any of its Subsidiaries the Dyn International Companies pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company such Government Contract has been withheld or set off, offset nor has any claim been made to withhold or set off money, offset money (other than retainages as provided for in each case, in an amount in excess of $10,000,000the applicable Government Contract).
(jb) Since To the Applicable Dateknowledge of CSC and the Seller, (i) neither none of the Company Dyn International Companies nor any of its Subsidiariestheir respective affiliates, nor any of the respective directors, officers or employees, nor, to employees is (or for the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries (other than routine audits) with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract or Bid and none of the Dyn International Companies nor any of their respective affiliates, directors, officers, employees, agents or consultants has made a Voluntary Disclosure pursuant to the Department of Defense Fraud Voluntary Disclosure Program with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract or Bid. To the knowledge of CSC and the Seller, in the past two years, none of the Dyn International Companies has submitted any materially inaccurate, untruthful, or misleading cost or pricing data relating to a Bid or Government Contract, and none of the Dyn International Companies has submitted any materially inaccurate, untruthful, or misleading certification included within or relating to any Bid (including any required updates).
(c) To the knowledge of CSC and the Seller, (i) neither the U.S. Government nor any prime contractor, subcontractor, vendor or any third party has asserted any material claim or initiated any dispute proceeding against any of the Dyn International Companies with respect to any material claim and (ii) none of the Dyn International Companies has asserted any material claim or initiated any dispute proceedings, directly or indirectly against any such party, concerning (in each case) any Executory Government Contract or Bid.
(d) None of the Dyn International Companies nor, to the Knowledge knowledge of CSC and the CompanySeller, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective affiliates, directors, officers or employees is (or at any time during the last five years has been) suspended or debarred from doing business with the U.S. Government or has been declared nonresponsible or ineligible for U.S. Government contracting. To the knowledge of CSC and the Seller, there are no matters pending that are believed reasonably likely to lead to the institution of suspension or debarment proceedings against any of the Dyn International Companies. Excepted as identified in each case in their capacity as suchSchedule 2.20(d), none of the Dyn International Companies has, within the past three years, been terminated for default under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureContract.
(ke) The Company To the knowledge of CSC and the Seller, each of the Dyn International Companies possesses all necessary security clearances and Permits for the execution of its Subsidiaries obligations under any Executory Government Contract. Each of the Dyn International Companies has the proper procedures to conduct business of a classified nature up to the level of its current clearances. Each of the Dyn International Companies is in compliance in all material respects with applicable agency security requirements, as appropriate, and their respective employees possess all facility has in place proper procedures, practices and personnel records to maintain security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117current contracts.
(lf) The Company To the knowledge of CSC and its Subsidiaries are the Seller, each Dyn International Company’s cost accounting system is in material compliance with applicable regulations (including the Federal Acquisition Regulations) and has not currently limited, prohibited or otherwise restricted from performing or bidding for been determined by any Governmental Entity not to be in compliance with the requirements of the Federal Cost Accounting Standards in any material work or material future business opportunities due respect. Each Dyn International Company has reached agreement with the cognizant government representatives approving and “closing” all indirect costs charged to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisionsContracts for 1998, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract 1999 and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)2000, and those years are closed.
(mg) To For all purposes of this Agreement, “Bid“ means any quotation, bid or proposal by the extent applicableDyn International Companies which, (i) if accepted or awarded, would lead to a Contract with the Company and its Subsidiaries comply with DFARS 252.204-7012U.S. Government or any other entity, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) including a prime contractor or otherwise and, a higher tier subcontractor to the Knowledge U.S. Government, for the design, manufacture or sale of products or the Company, no circumstances have existed since provision of services by the Applicable Date that would have warranted such a reportDyn International Companies.
Appears in 1 contract
Government Contracts. Except as set forth on Schedule 2.20:
(a) Since To the Applicable Dateknowledge of CSC and the Seller, with respect to each and every Government Contract (as defined below) or outstanding Bid (as defined below) to which the Company and its Subsidiaries have Dyn International Companies is a party: (i) each of the Dyn International Companies has complied in all material respects with the all material terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein therein; (ii) each of the Dyn International Companies has complied in all material respects with all applicable requirements of statute, rule, regulation, order or agreement with the U.S. Government pertaining to such Government Contract or Bid (including, but not limited towithout limitation, and (A) the Truth in Negotiations Act of 1962, as may be applicableamended, the Truthful Cost and Pricing Data Act; (B) the Service Contract Act of 1965, as amended, (C) the Contract Disputes Act of 1978, as amended, (D) the Office of Federal Procurement Policy Act; , as amended, (E) the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; Federal Acquisition Regulations or any applicable agency supplement thereto, (F) the Cost Accounting Standards; , (G) the Defense Industrial Security Manual (DOD 5220.22-M), and applicable and material Federal Acquisition (H) the Defense Industrial Security Regulation (“FAR”DOD 5220.22-R) or any related security regulations); (iii) all representations and certifications executed, Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
, and each of the Dyn International Companies has complied in all material respects with all such representations and certifications; (civ) Since neither the Applicable Date through the date of this AgreementU.S. Government, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor any other person has notified the Company or any of its Subsidiariesthe Dyn International Companies, in writing orwriting, to the Knowledge that any of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, Dyn International Companies has breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement Law pertaining to any such Government Contract or Bid that is reasonably likely to result in a Company Bid.
Material Adverse Effect; (dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice has been issued and not resolved or cured; (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirementsvi) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs cost incurred by the Company Dyn International Companies has been questioned in writing or disallowed since March 28, 2003 other than those which have been resolved; and (vii) no money due to any of its Subsidiaries the Dyn International Companies pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company such Government Contract has been withheld or set off, offset nor has any claim been made to withhold or set off money, offset money (other than retainages as provided for in each case, in an amount in excess of $10,000,000the applicable Government Contract).
(jb) Since To the Applicable Dateknowledge of CSC and the Seller, (i) neither none of the Company Dyn International Companies nor any of its Subsidiariestheir respective affiliates, nor any of the respective directors, officers or employees, nor, to employees is (or for the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries (other than routine audits) with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract or Bid and none of the Dyn International Companies nor any of their respective affiliates, directors, officers, employees, agents or consultants has made a Voluntary Disclosure pursuant to the Department of Defense Fraud Voluntary Disclosure Program with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract or Bid. To the knowledge of CSC and the Seller, in the past two years, none of the Dyn International Companies has submitted any materially inaccurate, untruthful, or misleading cost or pricing data relating to a Bid or Government Contract, and none of the Dyn International Companies has submitted any materially inaccurate, untruthful, or misleading certification included within or relating to any Bid (including any required updates).
(c) To the knowledge of CSC and the Seller, (i) neither the U.S. Government nor any prime contractor, subcontractor, vendor or any third party has asserted any material claim or initiated any dispute proceeding against any of the Dyn International Companies with respect to any material claim and (ii) none of the Dyn International Companies has asserted any material claim or initiated any dispute proceedings, directly or indirectly against any such party, concerning (in each case) any Executory Government Contract or Bid.
(d) None of the Dyn International Companies nor, to the Knowledge knowledge of CSC and the CompanySeller, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective affiliates, directors, officers or employees is (or at any time during the last five years has been) suspended or debarred from doing business with the U.S. Government or has been declared nonresponsible or ineligible for U.S. Government contracting. To the knowledge of CSC and the Seller, there are no matters pending that are believed reasonably likely to lead to the institution of suspension or debarment proceedings against any of the Dyn International Companies. Excepted as identified in each case in their capacity as suchSchedule 2.20(d), none of the Dyn International Companies has, within the past three years, been terminated for default under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureContract.
(ke) The Company To the knowledge of CSC and the Seller, each of the Dyn International Companies possesses all necessary security clearances and Permits for the execution of its Subsidiaries obligations under any Executory Government Contract. Each of the Dyn International Companies has the proper procedures to conduct business of a classified nature up to the level of its current clearances. Each of the Dyn International Companies is in compliance in all material respects with applicable agency security requirements, as appropriate, and their respective employees possess all facility has in place proper procedures, practices and personnel records to maintain security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117current contracts.
(lf) The Company To the knowledge of CSC and its Subsidiaries are the Seller, each Dyn International Company's cost accounting system is in material compliance with applicable regulations (including the Federal Acquisition Regulations) and has not currently limited, prohibited or otherwise restricted from performing or bidding for been determined by any Governmental Entity not to be in compliance with the requirements of the Federal Cost Accounting Standards in any material work or material future business opportunities due respect. Each Dyn International Company has reached agreement with the cognizant government representatives approving and "closing" all indirect costs charged to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisionsContracts for 1998, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract 1999 and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)2000, and those years are closed.
(mg) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in For all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge purposes of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.this Agreement,
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateThere are no disputes pending or, the Company and its Subsidiaries have complied in all material respects to Parent’s knowledge, threatened with the terms and conditions of each Material Company respect to any Parent Government Contract and except as would not reasonably be expected to have, either individually or in the aggregate, a Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid)Adverse Effect on Parent.
(b) Since Except as would not reasonably be expected to have, either individually or in the Applicable Dateaggregate, all representationsa Material Adverse Effect on Parent, certifications and disclosures made by the Company with respect to each Parent Government Contract, since January 1, 2007: (i) each of Parent and its Subsidiaries has complied with respect all laws pertaining to such Parent Government Contract; (ii) each of Parent and its Subsidiaries has complied with all requirements of governmental statutes, rules, regulations or, orders pertaining to such Parent Government Contract; (iii) each representation and certification directly or indirectly made to any Governmental Entity in a formal certification executed by Parent or its Subsidiaries pertaining to such Parent Government Contract or Company Bid were current, accurate was true and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their its effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any and Parent and each of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, has complied with each such representation and certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
; and (div) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company Parent nor any of its Subsidiaries has submitted any non-current, inaccurate or incomplete cost or pricing data to any Governmental Entity or higher tier prime contractor in connection with such Parent Government Contract. With respect to each Parent Government Contract, (x) no suspension, stop work order, cure notice or show cause notice in effect with respect to any such Parent Government Contract has been issued and remains unresolved nor, to Parent’s knowledge, has any Governmental Entity threatened to issue one and (y) neither Parent nor its Subsidiaries has received any written notice of the intention of any other party to a Parent Government Contract to terminate for default, convenience or otherwise any Parent Government Contract nor, to Parent’s knowledge, is any such party threatening to do so and (z) to the knowledge of Parent, neither Parent nor its Subsidiaries is aware of any organizational conflicts of interest that might arise as a result of the Merger or the other transactions contemplated by this Agreement.
(c) With respect to the Parent Government Contracts (i) to the knowledge of Parent, there is no pending administrative, civil fraud or criminal investigation or indictment of Parent, any of its Subsidiaries or any director, officer or employee of Parent or any of its Subsidiaries by any Governmental Entity with respect to any alleged or potential violation of law regarding any Parent Government Contract; (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of the Parent, any of their respective directors, officers or employees is suspended or debarred from doing business with the U.S. Government or declared nonresponsible or ineligible for U.S. Government contracting and there is no pending suspension, debarment or equivalent proceeding against Parent or any of its Subsidiaries or, to the Knowledge knowledge of the CompanyParent, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel director, officer or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge employee of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company Parent or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting ; and (iiiii) neither there is no (A) outstanding written request by the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed U.S. Government for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid material contract price adjustment based on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred a claimed disallowance by the Company Defense Contract Audit Agency or claim of defective pricing; or (B) unresolved material claim or equitable adjustment by Parent or any of its Subsidiaries pertaining to any individual Company Government Contract have been questionedagainst the U.S. Government. Since January 1, proposed for disallowance2007, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company Parent nor any of its Subsidiaries, nor any of the respective Parent’s or its Subsidiaries’ directors, officers or employeesemployees has hired any law firm or outside counsel to conduct any internal investigation, nor, or made a voluntary disclosure to the Knowledge of the CompanyU.S. Government, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Parent Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureParent Bid.
(kd) The Company Parent and its Subsidiaries and their respective employees possess all facility and personnel government security clearances necessary to perform all Material Company the Parent Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(le) The Company and its Subsidiaries are not currently limitedFor the purposes of this Agreement, prohibited “Parent Government Contract” means any prime contract, subcontract, teaming agreement or otherwise restricted from performing arrangement, joint venture, basic ordering agreement, pricing agreement, letter contract or bidding for any material work other similar arrangement or material future business opportunities due to “organizational conflicts commitment of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company any kind between Parent or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012U.S. Government, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since any prime contractor to the Applicable DateU.S. Government in its capacity as a prime contractor or (iii) any subcontractor with respect to any contract of a type described in clauses (i) or (ii) above. For the purposes of this Agreement, the Company and “Parent Bid ” means any quotation, bid or proposal by Parent or any of its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) that, if accepted or otherwise andawarded, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such result in a reportParent Government Contract (other than a Parent Bid).
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, Each Bid and each Government Contract of the Company and its Subsidiaries have complied is set forth in Section 3.29(a) of the Disclosure Schedule, a correct and complete copy of which has been made available to the Buyer.
(b) The Company and each Subsidiary is in compliance in all material respects with (i) the terms and conditions of each Material Company Bid and each Government Contract and Material Company Bid as requiredContract, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein and (including, but not limited to, ii) all requirements of Law pertaining to each Bid and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in each Government Contract. Neither any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor other Person has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, Subsidiary that the Company or any of its Subsidiaries has, or is alleged to have, Subsidiary has breached or violated in any material respect any Law, representation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any Bid or any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither Contract. Neither the Company nor any Subsidiary is in receipt or possession of its Subsidiaries has, since the Applicable Date, received any source selection or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, other procurement-sensitive information in the case of Contracts governed by Laws other than the state or federal Laws violation of the United StatesProcurement Integrity Act, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity hasor under circumstances where, to the Knowledge of the Company, threatened to issue such receipt or possession could be unlawful or unauthorized.
(c) Neither the Company, any such notice. Since the Applicable DateSubsidiary, neither the Company nor any of its Subsidiaries their respective current or former representatives has received ever been (i) debarred, suspended, or otherwise excluded or declared ineligible to receive Government Contracts, receive financial assistance from a Governmental Entity, or participate in programs administered by any written orGovernmental Entity, (ii) proposed for such debarment, suspension, or exclusion, or (iii) subject to any debarment, suspension, or exclusion proceeding. No facts or circumstances currently exist that would reasonably be expected to warrant the Knowledge commencement of debarment, suspension or exclusion proceedings or a finding of nonresponsibility on the part of the Company, oral notice from any Governmental Entity pertaining to Subsidiary or any Material Company Government Contract indicating that it intends to cancel of their respective current or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiariesformer representatives.
(ei) Since the Applicable DateThe Company and each Subsidiary has submitted all representations, no material written orcertifications, data, reports and disclosures required pursuant to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected Bid or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
Contract; (fii) To the Knowledge of the Companyall such representations, as of the date of this Agreementcertifications, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between data, reports and disclosures made by the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity Subsidiary with respect to any Bid or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
were current, accurate and complete as of their effective date (gand updated as required); (iii) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse and each Subsidiary have complied with all commitments contained or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
incorporated into such representations, certifications, data, reports and disclosures; and (h) Since the Applicable Date, (iiv) neither the Company nor any of its Subsidiaries Subsidiary has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or submitted to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreementany cost or pricing data, (i) no costs incurred by the Company certification, bid, proposal, report, claim or any of its Subsidiaries pertaining other information relating to any individual Company Bid or any Government Contract have been questionedthat was at the time of submission inaccurate, proposed for disallowancenon-current, incomplete, untruthful or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiariesmisleading, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any violation of the respective directorsTruth in Xxxxxxxxxxxx Xxx, officers or employees00 X.X.X. §0000x, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure41 U.S.C. §254b.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Medicines Co /De)
Government Contracts. (a) Since Except as set forth on Schedule 3.23(a):
(i) To Seller's Knowledge, Seller's and RSI's cost accounting, material management, quality control, and procurement systems, in each case with respect to the Applicable DateGovernment Contracts, are in compliance in all material respects with all laws and regulations;
(ii) To the Company Knowledge of Seller, (A) Seller and its Subsidiaries have RSI each has complied with all material terms and conditions of, and are not in material breach or default of, each Government Contract and all clauses, provisions and requirements included expressly, by reference or by operation of law therein, (B) Seller and RSI each has complied in all material respects with the terms and conditions of all Legal Requirements pertaining to each Material Company Government Contract and Material Company Bid as required(C) all representations and certifications executed, including all clauses, provisions and requirements incorporated expressly by reference acknowledged or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses set forth in any Material Company or pertaining to each Government Contract or Material Company Bid).were complete and correct in all material respects as of their effective date and Seller and RSI each has complied in all material respects with all such representations and certifications;
(biii) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries Neither Seller nor RSI has received a final decision of a government contracting officer or other contractor or any other Person asserting any claim or equitable adjustment or breach against Seller or RSI with respect to any Government Contract and there are no material disputes as to which Seller or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved RSI has received notice in writing with a Governmental Entity), in each case, in all material respects, as of their effective date.respect to any Government Contract;
(civ) Since To the Applicable Date through Knowledge of Seller, during the three (3) year period prior to the date of this Agreement, no Governmental Entity neither the United States Government nor any prime contractor or nor subcontractor has notified the Company Seller or RSI in writing, and neither Seller nor RSI has notified any of its Subsidiaries, Third Party in writing or, to the Knowledge of the Company, orallywriting, that the Company Seller or any of its Subsidiaries has, or is alleged to have, RSI has materially breached or materially violated in any Legal Requirement, any material respect any Law, representation, certification, disclosure, clause, provision provision, requirement, or requirement certification pertaining to any Government Contract or Company Bid.
(d) To the Knowledge Contract, provided that for purposes of the Companyforegoing, neither the Company nor a breach or violation shall not include any of its Subsidiaries has, since the Applicable Date, received breach or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim violation that has been formally corrected or otherwise finally resolved with to the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws satisfaction of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a relevant non-breaching party.;
(fv) To During the Knowledge of the Company, as of three (3) year period prior to the date of this Agreement, there exists no outstanding asserted disputes neither the United States government nor any prime contractor nor subcontractor has notified Seller or claims RSI in writing and neither Seller nor RSI has notified any Third Party in writing, that Seller or RSI has breached or violated any Legal Requirement, representation, clause, provision, requirement, or certification pertaining to any Government Contract, where the breach or violation described in this Section 3.23(a)(v), individually or in the aggregate, would have a Material Adverse Effect;
(vi) No termination for an amount convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any Government Contract;
(vii) No aggregated costs in excess of One Hundred Thousand Dollars ($25,000,000 between the Company 100,000) incurred by Seller or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating RSI pertaining to any Government Contract have been formally questioned or Company Bid.challenged, or have been disallowed in any manner by the United States Government;
(gviii) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts No money due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Seller or any of its Subsidiaries RSI pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, off nor has any claim been made to withhold or set off moneysuch money and, to the Knowledge of Seller, except for adjustments in the ordinary course of business, each caseof Seller and RSI is entitled to all payments, in including progress payments, received with respect to any Government Contract; and
(ix) Neither Seller nor RSI has received any written notices of product or service warranty claims or obligations pertaining to any Government Contract that exceed an aggregate amount in excess of One Hundred Thousand Dollars ($10,000,000100,000).
(jb) Since the Applicable DateExcept as set forth on Schedule 3.23(b), (i) to the Knowledge of Seller, neither Seller, with respect to the Company Business, nor any of its SubsidiariesRSI, nor any of the their respective directors, officers or employeesemployees that are engaged in the Business, nor, is (or during the three year period prior to the Knowledge date of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or this Agreement has been been) under administrative, civil or criminal investigation, or indictment or criminal information audit by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries Body with respect to any alleged material violation of law, irregularity, misstatement or omission arising under or relating to any Government ContractContract (other than routine DCAA audits, in which no such violations of law, irregularities, misstatements or omissions were expressly identified); and (ii) during the last three (3) years, neither Seller, with respect to the Knowledge of the CompanyBusiness, there is no current nor RSI has conducted or outstanding civil investigative demand initiated any internal investigation or subpoena issued made a voluntary disclosure to the Company United States Government, with respect to any alleged violation of law, irregularity, misstatement or any of its Subsidiaries, nor any of its omission arising under or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any a Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosureContract.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as set forth in Schedule 3.23(c), and all such security clearances are valid and in full force and effect. Since during the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
three (l3) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel year period prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicableAgreement, (i) Seller, with respect to the Company and its Subsidiaries comply Business, has not been (A) debarred or suspended or (B) notified of a proposed debarment or suspension, in each case from participation in the award of contracts with DFARS 252.204-7012any United States Government entity, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since RSI has not been (A) debarred or suspended or (B) notified of a proposed debarment or suspension, in each case from participation in the Applicable Dateaward of contracts with any United States Government entity, and (iii) neither Seller, with respect to the Company Business, nor RSI has been the subject of a finding of nonresponsibility or ineligibility for contracting with any United States Government entity (and its Subsidiaries have not submitted any cyber incident report pursuant in each case excluding ineligibility to DFARS 252.204-7012(c) bid on certain contracts due to generally applicable bidding requirements such as nonresponsiveness or otherwise and, to exclusion from a competitive range). To the Knowledge of the CompanySeller, there exist no facts or circumstances have existed since the Applicable Date that would have warranted such a reportwarrant the institution of suspension or debarment proceedings by any United States Government entity against, or the finding of non-responsibility or ineligibility for contracting with any United States Government entity on the part of, Seller (with respect to the Business) or RSI.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Itt Industries Inc)
Government Contracts. (a) Since To the Applicable DateKnowledge of Sellers, during the Company past five (5) years, no payment has been made by any of Sellers or the Subsidiaries, or by any Person authorized to act on their behalf, to any Person in connection with any Government Contract in violation of applicable procurement laws or regulations or in violation of (or requiring disclosure pursuant to) the Foreign Corrupt Practices Act or other laws.
(b) The Division's cost accounting and its Subsidiaries have complied procurement systems with respect to Government Contracts are in compliance in all material respects with the all applicable governmental regulations.
(c) With respect to each Government Contract, except as set forth on Schedule 3.3: (i) each Seller and Subsidiary has complied with all material terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredContract, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein law therein; (includingii) each Seller and Subsidiary has complied with all material requirements of applicable laws, but not limited torules and regulations pertaining to such Government Contract; (iii) all representations and certifications executed, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses acknowledged or set forth in any Material Company or pertaining to such Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications were complete and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
, and each Seller and Subsidiary has complied in all material respects with all such representations and certifications; (civ) Since neither the Applicable Date through the date of this Agreement, no Governmental Entity United States Government nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company Sellers or any of its Subsidiaries, Subsidiary in writing or, to the Knowledge of the Company, orally, that the Company any Seller or any of its Subsidiaries has, or is alleged to have, Subsidiary has breached or violated in any applicable law, or any material respect any Lawcertification, representation, certification, disclosure, clause, provision or requirement pertaining to any such Government Contract Contract; (v) since January 1, 1993, no termination for convenience, cure notice or Company Bidshow cause notice has been received by a Seller pertaining to such Government Contract, except with respect to Government Contracts involving no more than $50,000 per calendar year in the aggregate; and (vi) since January 1, 1992, no termination for default has been received by a Seller pertaining to a Government Contract.
(d) To the Knowledge of the Company, Except as set forth on Schedule 3.3: (i) neither the Company Sellers nor any of its the Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity hasnor, to the Knowledge of the CompanySellers, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its their respective directors, officers or employees is (or during the last five (5) years has been) under administrative, civil or criminal investigation, or indictment by any governmental authority with respect to any alleged irregularity, misstatement or omission; and (ii) during the last five (5) years, none of the Sellers or the Subsidiaries has received made a voluntary disclosure to the United States Government of any written oractual or potential violation of law arising under or relating to a Government Contract (whether under the Voluntary Disclosure program of the Department of Defense Inspector General or otherwise), which actual or potential violation of law has not been finally resolved with the United States Government. Any and all disclosures made pursuant to the Voluntary Disclosure program of the Department of Defense Inspector General within the last five (5) years are disclosed on Schedule 3.3, regardless whether the actual or potential violation has been resolved.
(e) Except as set forth on Schedule 3.3, to the Knowledge of the CompanySellers, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
there exist (ei) Since the Applicable Date, no material written or, to the Knowledge outstanding claims against Sellers or any of the CompanySubsidiaries, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under either by the United States civil Government or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or by any prime contractor, subcontractor, vendor or other Person, on the other handthird party, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved Contract; and (ii) no payment due to material disputes between any of Sellers or the Company Subsidiaries and the United States Government under the Contract Disputes Act or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld other Federal statute or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor between any of its SubsidiariesSellers or the Subsidiaries and any prime contractor, nor any of the respective directors, officers subcontractor or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission vendor arising under or relating to any Government Contract.
(f) None of Sellers or the Subsidiaries, (ii) nor, to the Knowledge of the CompanySellers, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees is (in each case in their capacity as such), under or during the civil last five (5) years has been) suspended or criminal False Claims Act relating to any debarred from doing business with the United States Government Contract and or is (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted during such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (iperiod was) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) subject of a finding of nonresponsibility or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportineligibility for United States Government contracting.
Appears in 1 contract
Government Contracts. (a) Since December 31, 2019, with respect to each Executory Government Contract to which a Premier Party is a party and relates to the Applicable Date, B&I GPO Business or the Company and its Subsidiaries have Contributed Assets:
(i) the applicable Premier Party has complied in all material respects with the all terms and conditions of each Material Company such Executory Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).Legal Requirement therein;
(bii) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, applicable Premier Party has complied in all material respectsrespects with all requirements of statute, rule, regulation, order or agreement with the Governmental Authority pertaining to such Executory Government Contract;
(iii) all representations and certifications executed, acknowledged or set forth in or pertaining to such Executory Government Contract were accurate in all material respects as of their effective date., and the applicable Premier Party has complied in all material respects with all such representations and certifications;
(civ) Since the Applicable Date through the date of this Agreement, no Governmental Entity Authority, nor any Supplier, vendor, prime contractor contractor, subcontractor or subcontractor other Person, has notified the Company or any of its Subsidiariesa Premier Party, in writing or, to the Knowledge of the Company, orallywriting, that the Company applicable Premier Party is in material breach or violation of any of its Subsidiaries haswith applicable Legal Requirement, or is alleged to have, breached or violated in any material respect any Lawcertification, representation, certification, disclosure, clause, provision provision, or requirement pertaining to any such Executory Government Contract or Company Bid.Contract;
(dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, is currently in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) effect pertaining to any Material Company Executory Government Contract; and
(vi) no material cost incurred, andfee claimed, since or rebate payment, by the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity applicable Premier Party pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Executory Government Contract has been withheld questioned or set offchallenged in writing by representatives of a Governmental Authority, nor has is any claim been made to withhold such Executory Government Contract cost, fee or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, rebate the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit dispute or, to the Knowledge of the Company, investigation or been disallowed or questioned by a Governmental Authority.
(b) No amount of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued money due to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating pertaining to any Executory Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure is being withheld or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, set off and no circumstances have existed that would have warranted such a disclosure.
(k) The Company claim is currently being made to withhold or set off money and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise andPremier Party is, to the Knowledge of the Company, no circumstances entitled to all payments received with respect thereto; and for purposes of this Section 2.28, “Executory Government Contract” means a Government Contract or subcontract with a Governmental Authority that has not been finally and completely closed by the Governmental Authority, Supplier, prime contractor, vendor, or subcontractor, as applicable. “Executory Government Contract” includes, but is not limited to, Government Contracts in which there are outstanding claims and settlements including Company Contracts in which all monies have existed since the Applicable Date that would have warranted such a reportnot been paid or are in dispute.
Appears in 1 contract
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid Except as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but has not limited tohad, and as may would not reasonably be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor the Company Subsidiaries have (i) breached or violated in any material respect any Law, representation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any Government Contract Contract; (ii) been suspended or Company Bid.
debarred from bidding on government contracts by a Governmental Authority; (diii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received been audited or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract investigated by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity Authority with respect to the award or performance of any Government Contract, with the subject exception of routine audits or investigations; (iv) conducted or initiated any actual internal investigation or threatened in writing, “whistleblower” or “qui tam” lawsuit, or made any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries disclosure with respect to any alleged material or potential irregularity, misstatement or omission arising under or relating to a Government Contract; (v) received from any Governmental Authority or any other Person any written notice of breach, cure, show cause or default with respect to any Government Contract, ; (iivi) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to had any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to terminated by any Governmental EntityAuthority or any other Person for default or failure to perform; (vii) received any small business set-aside contract, and no circumstances have existed that would have warranted such any other set aside contract or other order or contract or subcontract requiring small business or other preferred bidder status or (viii) entered any Government Contracts payable on a disclosurecost-reimbursement basis.
(kb) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as has not had, and all such security clearances are valid and in full force and effect. Since the Applicable Datewould not reasonably be expected to have, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified individually or in the National Industrial Security Program Operating Manualaggregate, 32 C.F.R. Part 117.
(l) The a Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicableAdverse Effect, (i) the Company and its the Company Subsidiaries comply have established and maintained adequate internal controls for compliance with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and their respective Government Contracts; (ii) since all pricing discounts have been properly reported to and credited to the Applicable Datecustomer and all invoices and claims for payment, reimbursement or adjustment submitted by the Company and its the Company Subsidiaries have not submitted were current, accurate and complete as of their respective submission dates; (iii) there are no outstanding claims or disputes in connection with any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company’s or the Company Subsidiaries’ Government Contracts and (iv) to the Company’s Knowledge, there are no circumstances have existed since outstanding or unsettled allegations of fraud, false claims or overpayments nor any investigations or audits by any Governmental Authority with regard to any of the Applicable Date that would have warranted such a reportCompany’s or the Company Subsidiaries’ Government Contracts.
Appears in 1 contract
Samples: Merger Agreement (SecureWorks Corp)
Government Contracts. (a) Since the Applicable Date, the Company and its Subsidiaries have Except as set forth in Schedule 3.21(a): (i) Seller has complied in all material respects with all the terms and conditions of each Material Company of its Government Contract Contracts, Foreign Government Contracts and Material Company Bid Government Bids as required; (ii) Seller has complied in all material respects with all requirements of applicable Laws pertaining to each of its Government Contracts, including Foreign Government Contracts and Government Bids; (iii) all clausesrepresentations and certifications made by Seller with respect to each of its Government Contracts, provisions Foreign Government Contracts and requirements incorporated expressly by reference Government Bids are accurate in all material respects as of their effective dates and Seller has complied with all such representations and certifications in all material respects; and (iv) no termination or by operation default, cure notice or show cause notice has been issued or, has been threatened in writing with respect to any of Law therein (including, but not limited tothe Government Contracts or Foreign Government Contracts, and as may be applicable, Seller has not been threatened in writing with suspension or debarment with respect to any of the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract Contracts or Material Company Bid)Foreign Government Contracts.
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, Except as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid set forth on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, Schedule 3.21(b): (i) neither the Company nor any to Seller’s Knowledge, none of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or Seller’s employees, nor, to the Knowledge of the Company, any consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last five years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award Body; (ii) there is not pending any audit or performance investigation of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitSeller, or to Seller’s Knowledge, its directors, officers, employees or representatives nor within the last five years has there been any audit or, to the Knowledge of the Company, or investigation of the Company Seller, or any of to Seller’s Knowledge, its Subsidiaries directors, officers, employees or representatives resulting in a material adverse finding with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Foreign Government Contracts or Government Bids; and (iiiii) during the last five years, Seller has not made any voluntary disclosure to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company U.S. Government or any of its Subsidiariesnon-U.S. government with respect to any alleged irregularity, nor any of its misstatement or their respective directorsomission arising under or relating to a Government Contract, officers Foreign Government Contract or employees (Government Bid. Except as set forth in each case in their capacity as suchSchedule 3.21(b), Seller has not had any irregularities, misstatements or omissions arising under the civil or criminal False Claims Act relating to any Government Contract, Foreign Government Contract and (iii) neither or Government Bid that has led or is expected to lead, either before or after the Company nor Closing Date, to any of its Subsidiaries has made the consequences set forth in clause (i) or (ii) of the immediately preceding sentence or any written disclosure under the FAR mandatory disclosure other material damage, penalty assessment, recoupment of payment or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosuredisallowance of cost.
(kc) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government ContractsExcept as set forth in Schedule 3.21(c), and all such security clearances there are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (i) no outstanding Claims against Seller, either by the Company and its Subsidiaries comply with DFARS 252.204U.S. Government or any non-7012U.S. government or by any prime contractor, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects subcontractor, vendor or other third party arising under or relating to any Government Contract, Foreign Government Contract or Government Bid, and (ii) since no disputes between Seller and the Applicable DateU.S. Government or any non-U.S. government under the Contract Disputes Act or any other Laws or between Seller and any prime contractor, the Company and its Subsidiaries have not submitted subcontractor or vendor arising under or relating to any cyber incident report pursuant such Government Contract, Foreign Government Contract or Government Bid. Except as set forth in Schedule 3.21(c), to DFARS 252.204-7012(cSeller’s Knowledge there are no existing facts that would reasonably be expected to result in a Claim or dispute under clause (i) or otherwise and(ii) of the immediately preceding sentence.
(d) Except as set forth in Schedule 3.21(d), neither Seller nor, to Seller’s Knowledge, any of its directors, officers, employees, consultants or agents is (or during the Knowledge last five years has been) suspended or debarred from doing business with the U.S. Government or any non-U.S. government or is (or during such period was) the subject of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportfinding of non-responsibility or ineligibility for U.S. Government or non-U.S. government contracting.
Appears in 1 contract
Government Contracts. 6.35.1 In addition to the representations and warranties in Section 6.28, with respect to each and every Government Contract or bid which, if accepted, would result in a Government Contract (aa "Government Bid"): (i) Since the Applicable Date, each of the Company and its the Subsidiaries have has complied in with all material respects with the terms and conditions of each Material Company such Government Contract and Material Company Bid as requiredor Government Bid, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein therein; (including, but not limited to, ii) each of the Company and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and Subsidiaries has complied with all requirements of all material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Laws or agreements pertaining to such Government Contract or Material Company Government Bid).
; (biii) Since the Applicable Dateall representations and certifications executed, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect acknowledged or set forth in or pertaining to any such Government Contract or Company Government Bid were current, accurate complete and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, correct in all material respects, respects as of their effective date.
, and the Company and the Subsidiaries have complied in all material respects with all such representations and certifications; (civ) Since neither the Applicable Date through the date of this Agreement, no Governmental Entity U.S. Government nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company or any of its the Subsidiaries, either in writing or, to the Knowledge of the Companyits knowledge after diligent inquiry, orally, that the Company or any of its the Subsidiaries has, or is alleged to have, has breached or violated in any material respect any Law, representationOrder, certification, disclosurerepresentation, clause, provision or requirement pertaining to any such Government Contract or Company Government Bid.
; (dv) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, is currently in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) effect pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Government Bid.
; (g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (ivi) no costs material cost incurred by the Company or any of its the Subsidiaries pertaining to any individual Company such Government Contract have or Government Bid has been questionedformally questioned or challenged, proposed for disallowance, is the subject of any investigation or deemed finally disallowed, in each case, in writing has been disallowed by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved U.S. Government; and (iivii) no payment money due to the Company or any of its the Subsidiaries pertaining to any Material Company such Government Contract or Government Bid has been withheld or set off, offset nor has any claim been made to withhold or set off offset money, in each case, in an amount in excess of $10,000,000and the Company or such Subsidiary is entitled to all progress payments received with respect thereto.
(j) Since the Applicable Date, (i) neither Neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, Subsidiaries nor, to the Knowledge of the CompanySellers' Knowledge, any of their directors, officers, employees, consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitAuthority, or any audit or, to the Knowledge of the Company, or investigation of the Company or any of its the Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Contract or Government Bid; and (ii) during the last three years, the Company and the Subsidiaries have not conducted or initiated any internal investigation or made a voluntary disclosure to the Knowledge U.S. Government with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid. There exists no irregularity, misstatement or omission arising under or relating to any Government Contract or Government Bid that has led to any of the Companyconsequences set forth in clause (i) or (ii) of the immediately preceding sentence or any other damage, there is penalty assessment, recoupment of payment or disallowance of cost.
6.35.3 There exist (i) no current or outstanding civil investigative demand or subpoena issued to material claims against the Company or any of its the Subsidiaries, nor either by the U.S. Government or by any of its prime contractor, subcontractor, vendor or their respective directorsother third party, officers arising under or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract or Government Bid; and (iiiii) neither no material disputes between the Company or any of the Subsidiaries and the U.S. Government under the Contract Disputes Act or any other Federal statute or between the Company or any of the Subsidiaries and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Bid. Neither the Company nor any of its the Subsidiaries has made any written disclosure interest in any pending or potential claim against the U.S. Government or any prime contractor, subcontractor or vendor arising under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) relating to any Governmental Entity, and no circumstances have existed Government Contract or Government Bid. Schedule 6.35 identifies each Government Contract which is currently under audit by the U.S. Government or any other Person that would have warranted is a party to such a disclosureGovernment Contract.
(k) The Company 6.35.4 All material test and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted inspection results provided by the Company or any of its the Subsidiaries in connection with to the U.S. Government pursuant to any Material Company Government Contract and made available or to Parent any other Person pursuant to a Government Contract or its outside legal counsel prior as a part of the delivery to the date of this Agreement (except U.S. Government or to the extent making such Material Company any other Person pursuant to a Government Contract available to Parent is prohibited by applicable national security of any article designed, engineered or similar Law).
(m) To manufactured in the extent applicable, (i) the Company Business were complete and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting correct in all material respects and (ii) since as of the Applicable Date, date so provided. The Company and/or any of the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, provided all material test and inspection results to the Knowledge U.S. Government and each other Person who is required to receive such information under applicable Law and the terms of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportGovernment Contracts.
Appears in 1 contract
Government Contracts. (a) Since the Applicable DateSCHEDULE 4.13(a) lists each Government Contract and Government Subcontract. Except as set forth in SCHEDULE 4.13(a), the (i) each Company and its Subsidiaries have has complied in all material respects with the all terms and conditions of each Material Company all such Government Contract Contracts and Material Company Bid as requiredGovernment Subcontracts, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein therein, (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”ii) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity Authority nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company Sellers or any of its Subsidiaries, Company in writing or, to the Knowledge of the Company, orally, that the a Company or any of its Subsidiaries has, or is alleged to have, has breached or violated in any material respect any Law, representation, certification, disclosurerepresentation, clause, provision or requirement pertaining to any such Government Contract or Government Subcontract in any material respect, (iii) no Company Bid.
(d) To the Knowledge of the Company, neither the Company nor has received any of its Subsidiaries has, since the Applicable Date, received or is subject to any written notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company such Government ContractContract or Government Subcontract, and, since (iv) other than in the Applicable Dateordinary course of business, no Governmental Entity has, to cost incurred by the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity Companies pertaining to any Material Company such Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that Government Subcontract has been formally corrected questioned or otherwise finally resolved with challenged, is the applicable Governmental Entity) under the United States civil subject of any audit or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made investigation or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract disallowed by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting Authority and (iiv) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or no payments due to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries Companies pertaining to any individual Company such Government Contract Contracts or Government Subcontracts have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any written claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000and the Companies are entitled to all payments received to date with respect thereto.
(jb) Since the Applicable DateTo Sellers' Knowledge, except as set forth on SCHEDULE 4.13(b) (i) neither the any Company nor any director, officer, employee, consultant or other representative of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, Authority or any audit or, to the Knowledge of the Company, or investigation of the any Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement act or omission arising under or relating to any Government Contract, Contract or Government Subcontract and (ii) no Company has made voluntary disclosure with respect to the Knowledge any alleged irregularity, mischarging, misstatement or omission arising under or related to any Government Contract or Government Subcontract that has led or would be reasonably likely to lead, to any of the consequences set forth in clauses (i) above or any other damage, penalty assessment, recoupment or payment or disallowance of cost.
(c) There are no material outstanding claims against any Company, there is no current either by any Governmental Authority or outstanding civil investigative demand by any prime contractor, subcontractor, vendor or subpoena issued to the Company other Person, arising under or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and or Government Subcontract.
(iiid) neither the Neither any Company nor any director, officer or employee of its Subsidiaries any Company has made any written disclosure under the FAR mandatory disclosure been suspended, proposed for disbarment or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified debarred from participation in the National Industrial Security Program Operating Manualaward of any Government Contract, 32 C.F.R. Part 117.
offer or bid with the United States government or any other Governmental Authority (l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding excluding for any material work or material future business opportunities this purpose ineligibility to bid on certain Government Contracts due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by generally applicable national security or similar Lawbidding requirements).
(me) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the CompanySellers' Knowledge, no circumstances have existed since the Applicable Date that would have warranted such a reportGovernment Contract or Government Subcontract contains any provisions under which any Governmental Authority or any other Person is given unlimited rights in any Intellectual Property.
Appears in 1 contract
Government Contracts. (ai) Since Schedule 3.13(b)(i) sets forth a true, correct and complete list of Government Contracts and Government Bids to which the Applicable DateCompany or any of its Subsidiaries is a party.
(ii) With respect to each Government Contract and Government Bid, to the Knowledge of the Company (A) the Company and its Subsidiaries have complied in all material respects with the terms and conditions of each Material Company such Government Contract and Material Company or Government Bid as required, including all clauses, provisions and requirements incorporated expressly expressly, by reference or by operation of Law therein any Laws therein; (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”B) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries have complied in all material respects with respect the requirements of applicable Laws pertaining to any such Government Contract or Company Government Bid; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract or Government Bid were current, accurate correct and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, respects as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries (in each case in their capacity as such), is or has been under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company such representations and certifications; (D) with respect to Government Contract Contracts, all invoices and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans claims submitted by the Company or any of its Subsidiaries to any Governmental Entity were correct and complete as of their submission date; (E) no Governmental Entity nor other Person has notified the Company or any of its Subsidiaries in writing that the Company or any of its Subsidiaries has breached or violated any certification, representation, clause, provision or requirement, pertaining to such Government Contract or Government Bid; (F) no written termination for convenience, termination for default, cure notice or show cause notice pertaining to any Government Contract is in effect; (G) no cost incurred or invoice rendered by the Company or any of its Subsidiaries has been disallowed (and neither the Company nor any of its Subsidiaries has any reason to believe that any cost or invoice will be disallowed), excluding de minimis amounts that have already been accounted for as disallowed costs in accordance with the revenue recognition policies of the Company and its Subsidiaries so long as, to the Knowledge of the Company, such de minimis amounts have not been the subject of any investigation or claim of defective pricing by any individual or Governmental Entity or been subject to penalty assessments; (H) in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior Contract, other than in accordance with the contract terms thereof, no money due to the date Company or any of this Agreement its Subsidiaries has been withheld or set off; and (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (iI) the Company and its Subsidiaries comply and their respective employees identified on Schedule 3.13(b)(ii) possess all security clearances that are necessary under the terms of, or under applicable law with DFARS 252.204-7012respect to, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and any Government Contract or Government Bid.
(iiiii) since To the Applicable DateKnowledge of the Company, neither the Company and nor its Subsidiaries nor any of their respective personnel is or has been under administrative, civil or criminal investigation, or indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract or Government Bid (other than routine Governmental Entity audits, in which no such irregularities, misstatements or omissions were expressly identified). Neither the Company nor any of its Subsidiaries have not submitted conducted or initiated any cyber incident report pursuant internal investigation or made a voluntary disclosure to DFARS 252.204any Governmental Entity, with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Bid. To the extent required by Law or Contract, the Company’s and its Subsidiaries’ practices and procedures used in estimating costs and pricing proposals and accumulating, recording, segregating, reporting and invoicing costs are in compliance with the applicable provisions set forth in Federal Acquisition Regulation Part 31.
(iv) There exist no (A) financing arrangements involving the Company or any of its Subsidiaries prohibited by statute or regulation with respect to performance of any current Government Contract; (B) outstanding claims against the Company or any of its Subsidiaries, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract; and (C) disputes between the Company or any of its Subsidiaries and any Governmental Entity under the Contract Disputes Act, as amended, or any other federal statute or similar foreign law or between the Company or any of its Subsidiaries and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract. Neither the Company nor any of its Subsidiaries has any known or threatened claim for breach of contract against any Governmental Entity or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Bid.
(v) Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any of their personnel has been suspended or debarred from doing business with any Governmental Entity or is, or at any time has been, the subject of a finding of non-7012(c) responsibility or otherwise ineligibility for contracting with any Governmental Entity. True, correct and complete copies of all Company Contracts have been made available to the Purchaser. The Company Contracts are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company or any of its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party to such Company Contracts. There is no circumstances have existed since existing material default or breach of the Applicable Date Company or any of its Subsidiaries, as applicable, under any Company Contract (or event or condition that, with notice or lapse of time or both could constitute a material default or breach) and, to the Knowledge of the Company, there is no such material default (or event or condition that, with notice or lapse of time or both, could constitute a material default or breach) with respect to any third party to any Company Contract. Schedule 3.13(a) and Schedule 3.13(b)(i) identify with an asterisk each Company Contract set forth therein that would have warranted requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such a reportContract or other instrument in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Government Contracts. (a1) Since the Applicable DateSchedule 3.1(u)(1) sets forth a true, the Company correct and complete list as of June 30, 2003, of (i) all Government Contracts (other than Government Contracts for which final payments have been made, Bids and Government Contracts which constitute Excluded Assets or Retained Assets). The Government Contracts set forth on Schedule 3.1(u)(1) are in full force and effect and are free and clear of any Encumbrances.
(2) Schedule 3.1(u)(2) sets forth a true, correct and complete list as of June 30, 2003, of outstanding Bids that have been submitted by each Acquired Entity or ACS Defense to any Governmental Entity, any proposed prime contractor to a Governmental Entity or any proposed higher-tiered subcontractor (other than Bids which constitute Excluded Assets or Retained Assets). STOCK PURCHASE AGREEMENT 26 EXECUTION VERSION
(3) Except as set forth in Schedule 3.1(u)(3): (i) each Acquired Entity and ACS Defense has fully complied with all material terms and conditions of each Government Contract to which it is a party as required; (ii) each Acquired Entity and ACS Defense has complied in every material respect with, and have conducted its Subsidiaries have complied operations in every material respect in accordance with, each applicable Law pertaining to Government Contracts including compliance in all material respects with the terms cost accounting standards set forth in the FAR; (iii) all representations and conditions of each Material Company certifications made by any Acquired Entity or ACS Defense with respect to such Government Contract were accurate in every material respect as of their effective date and Material Company Bid an Acquired Entity or ACS Defense, as requiredthe case may be, including has fully complied with all clausessuch representations and certifications in all material respects; (iv) no termination, provisions and requirements incorporated expressly by reference default, cure or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries show cause notice has been issued with respect to any Acquired Entity or ACS Defense since June 30, 2000 and no such notice remains unresolved; (v) no Acquired Entity or ACS Defense has submitted any quality or test report pursuant to any Government Contract that was inaccurate, untruthful or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated misleading in any material respect and (vi) there exist no outstanding requests for equitable adjustment or other contractual action for relief against any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither Acquired Entities or ACS Defense either by the Company nor any of its Subsidiaries has, since the Applicable Date, received U.S. Government or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract and neither any Acquired Entity nor ACS Defense has requested an equitable adjustment with respect to any Government Contract under which the Acquired Entities or Company BidACS Defense are currently providing services other than a Government Contract which constitutes an Excluded Asset or a Retained Asset.
(g4) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received Except as set forth in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, Schedule 3.1(u)(4): (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company Acquired Entities or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the respective directors, officers or employees, norACS Defense or, to the Knowledge knowledge of the CompanySeller, any their respective employees, consultants or agents of is (or during the Company or any of its Subsidiaries (in each case in their capacity as such), is or last three years has been been) under administrative, civil or criminal investigation, indictment or criminal information by any Governmental Entity with respect or has pled guilty to any criminal offense which could reasonably be expected to lead to (A) suspension, (B) debarment or (C) in the award case of the Acquired Entities or performance ACS Defense, other ineligibility to be a party to a Government Contract or which could reasonably be expected to subject the Acquired Entities or ACS Defense to any reporting obligation under FAR or other Laws applicable to Government Contracts; and none of any Government Contract, the subject of any actual Acquired Entities or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit orACS Defense (and, to the Knowledge knowledge of the CompanySeller, no employee, consultant or agent of any Acquired Entity or ACS Defense) has received any written notice that any investigation of the Company or any of its Subsidiaries is pending with respect to any alleged criminal Law and, to the knowledge of Seller, there is no such investigation with respect to any criminal Law pending other than the Antitrust Investigation; (ii) none of the Acquired Entities or ACS Defense (and, to the knowledge of Seller, no employee, consultant or agent of any Acquired Entity or ACS Defense) has received written notice of a pending audit (including any draft audit report received by the Acquired Entities or ACS Defense) or investigation (other than an investigation covered by clause (i) above) of the Acquired Entities or ACS Defense or any of their respective officers, employees or representatives by the Defense Contract Audit Agency, any other Governmental Entity or any other third-party auditor acting on their behalf, nor within the last three years has there been any such audit or investigation of the Acquired Companies or ACS Defense or any of their respective officers, employees or representatives with respect to any Government Contract with respect to which the Acquired Entities or ACS Defense has received written notice or otherwise has knowledge, (iii) none of the audits set forth on Schedule 3.1(u)(4) has resulted in an adverse finding with respect to any material irregularity, irregularity or any misstatement or fraudulent omission arising under or relating to any Government Contract; and (iv) during the last three years, (ii) the Acquired Entities and ACS Defense have not made any voluntary disclosure in writing to the Knowledge of the CompanyU.S. Government with respect to any alleged irregularity, there is no current misstatement or outstanding civil investigative demand fraudulent omission arising under or subpoena issued relating to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (a Government Contract. Except as set forth in each case in their capacity as suchSchedule 3.1(u)(4), the Acquired Entities and ACS Defense have not had any such irregularities, misstatements or omissions arising under the civil or criminal False Claims Act relating to any such Government Contract and (iii) neither the Company nor any of its Subsidiaries that has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) led to any Governmental Entitysuspension, and no circumstances have existed that would have warranted such debarment or other ineligibility of the Acquired Entities or ACS Defense to be a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary party to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company a Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any other material damage, penalty assessment, recoupment of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent payment or its outside legal counsel prior to the date disallowance of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)cost.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Stock Purchase Agreement (Affiliated Computer Services Inc)
Government Contracts. (a) Since None of the Applicable Date, the Company and Borrower or any of its Subsidiaries or any of their respective Affiliates is party to any Contractual Obligation or subject to any Requirement of Law as a result of any conflict of interest by, between or among the Borrower, such Subsidiaries or such Affiliates or otherwise that would result in the termination of any Material Government Contract or that would impose any material limitation on the Borrower's or such Subsidiary's ability to perform such contract or to continue its business as presently conducted and proposed to be conducted.
(b) No payment has been made by the Borrower or any of its Subsidiaries, or by any Person authorized to act on their behalf, to any Person in connection with any Government Contract of the Borrower or any such Subsidiary, which payment would be a material violation of applicable procurement laws or regulations or of the Foreign Corrupt Practices Act or of any other material Requirement of Law.
(c) With respect to each Government Contract to which the Borrower or any of its Subsidiaries is a party: (i) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct in all material respects as of their effective date, and the Borrower and each such Subsidiary have complied in all material respects with all such representations and certifications; (ii) except as set forth on Item 6.22 ("Government Contracts") of the terms and conditions of each Material Company Disclosure Schedule, neither the United States Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor contractor, subcontractor or subcontractor other Person has notified the Company Borrower or any of its Subsidiariessuch Subsidiary, either orally or in writing or, to the Knowledge of the Company, orallywriting, that the Company Borrower or any of its Subsidiaries has, or is alleged to have, such Subsidiary has breached or violated in any material respect any Requirement of Law, or any material certificate, representation, certification, disclosure, clause, provision or requirement pertaining to such Government Contract; and (iii) solely with respect to Material Government Contracts, no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any such Material Government Contract or Company BidContract.
(d) To the Knowledge Except as set forth on Item 6.22 of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable DateDisclosure Schedule, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer none of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company Borrower or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(j) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries, nor any of the their respective directors, officers or employees, nor, to employees is (or during the Knowledge of the Company, any consultants or agents of the Company or any of its Subsidiaries last three (in each case in their capacity as such), is or 3) years has been been) under administrative, civil or criminal investigation, investigation or indictment or criminal information by any Governmental Entity with respect to the award or performance of any Government ContractAuthority, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation of the Company or any of its Subsidiaries with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, ; and (ii) during the last three (3) years, none of the Borrower or any of the Subsidiaries has conducted or initiated any internal investigation or made a voluntary disclosure to the Knowledge United States Government, with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract, in each case except (with respect to such matters occurring after the Effective Date) as disclosed to the Lenders.
(e) Except as set forth on Item 6.22 of the CompanyDisclosure Schedule, there is exist (i) no current outstanding material claims against the Borrower or outstanding civil investigative demand any of the Subsidiaries, either by the United States Government or subpoena issued by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract; and (ii) no material disputes between the Company Borrower or any of the Subsidiaries and the United States Government under the Contract Disputes Act or any other Federal statute or between the Borrower or any of the Subsidiaries and any prime contractor, subcontractor or vendor arising under or relating to any such Government Contract.
(f) None of the Borrower or any of its Subsidiaries, nor Subsidiaries or any of its or their respective directors, officers or employees is (in each case in their capacity as such), under or during the civil last three (3) years has been) suspended or criminal False Claims Act relating to any debarred from doing business with the United States Government Contract and or is (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted during such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).
(m) To the extent applicable, (iperiod was) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) subject of a finding of nonresponsibility or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a reportineligibility for United States Government contracting.
Appears in 1 contract
Government Contracts. (ai) Since Except as set forth in Schedule 5.11, with respect to each Government Contract and bid or proposal in response to a solicitation with respect to a Government Contract ("Government Bid") to which Target or any Target Subsidiary is a party: (A) all representations and certifications made by Target or the Applicable Date, the Company and its Subsidiaries have complied Target Subsidiary were accurate in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
, and Target or the Target Subsidiary has fully complied with such representations and certifications in all material respects; (cB) Since to the Applicable Date through the date knowledge of this AgreementTarget, no Governmental Entity nor any prime contractor termination or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orally, that the Company or any of its Subsidiaries has, or is alleged to have, breached or violated in any material respect any Law, representation, certification, disclosure, clause, provision or requirement pertaining to any Government Contract or Company Bid.
(d) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entity) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one handissued and remains unresolved, and either the applicable no event, condition or omission has occurred or exists that would constitute grounds for such action; (C) neither a Governmental Entity or Authority nor any prime contractor, subcontractor, vendor or other Person, on third party has notified Target or the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received Target Subsidiary in writing that Target or the Target Subsidiary has breached or violated any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting applicable Law; and (iiD) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge knowledge of the Company proposed for a finding of debarment or suspensionTarget, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts no money due to generally applicable bidding requirements).
(i) As of Target or the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have been questioned, proposed for disallowance, or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and (ii) no payment due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract Target Subsidiary has been withheld or set off, nor has any claim been made to withhold or set off money, in each case, in an amount in excess of $10,000,000.
(jii) Since Except as set forth in Schedule 5.11: (A) to the Applicable Dateknowledge of Target, (i) neither the Company nor any of its Subsidiaries, nor any none of the respective directorsofficers, officers or employees, norAffiliates, to the Knowledge consultants, agents or representatives of the Company, any consultants or agents of the Company Target or any of its Subsidiaries Target Subsidiary is (in each case in their capacity as such), is or during the last five years has been been) under any administrative, civil or criminal investigation, investigation or indictment or criminal information by any Governmental Entity Authority with respect to the award conduct of the business of Target or performance any Target Subsidiary; (B) to the knowledge of Target, there is no pending audit or investigation of Target, any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuitTarget Subsidiary, or any audit orof their respective officers, to the Knowledge of the Companyemployees, investigation of the Company Affiliates, consultants, agents or representatives resulting in any of its Subsidiaries material adverse finding with respect to any material alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, Contract or Government Bid; (iiC) to the Knowledge knowledge of the CompanyTarget, there is no current or outstanding civil investigative demand or subpoena issued to the Company cost incurred by Target or any Target Subsidiary pertaining to any Government Contract or Government Bid is the subject of its Subsidiariesan investigation or has been disallowed by a Governmental Authority; and (D) during the last five years, neither Target nor any of its Target Subsidiary has made any voluntary disclosure to any Governmental Authority with respect to any material alleged irregularity, misstatement or their respective directors, officers omission arising under or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and or Government Bid.
(iii) Except as set forth in Schedule 5.11, with respect to each Government Contract and bid or proposal in response to a solicitation with respect to a Government Bid to which Target or any Target Subsidiary is a party, there are, to the knowledge of Target: (A) no outstanding claims against Target or the Target Subsidiary , either by a Governmental Authority or any prime contractor, subcontractor, vendor or other third party; and (B) no outstanding disputes between Target or the Target Subsidiary, on the one hand, and any Governmental Authority, on the other hand. Except as disclosed in Schedule 5.11, to the knowledge of Target, no event, condition or omission has occurred that would constitute grounds for a claim or a dispute under clauses (A) or (B) of the immediately preceding sentence. Except as disclosed in Schedule 5.11, to the knowledge of Target, neither the Company Target nor any of its Subsidiaries Target Subsidiary has made any written disclosure interest in any pending or potential claim under the FAR mandatory disclosure Contract Disputes Act against any Governmental Authority of the U.S. government or payment provisions any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Bid.
(includingiv) Except as disclosed in Schedule 5.11, but not limited toto the knowledge of Target, FAR 52.203none of Target, any Target Subsidiary, or any of their respective officers, employees, Affiliates, consultants, agents or representatives is (or during the last five years has been) suspended or debarred from doing business with any Governmental Authority or is (or during the last five years was) the subject of a finding of noncompliance, non-13(b)(3)responsibility or ineligibility for contracting with any Governmental Authority. To the knowledge of Target, no valid basis or specific circumstances exist that with the passage of time could reasonably be expected to result in the suspension or disbarment of Target, any Target Subsidiary, or any of their respective officers, employees, Affiliates, consultants, agents or representatives from bidding on contracts or subcontracts for or with any Governmental Authority.
(v) With respect to all Government Contracts to which Target or any Target Subsidiary is a party, to the extent applicable thereto, and except as set forth in Schedule 5.11:
(A) the rates and rate schedules submitted to any Governmental Entity, and no circumstances Authority of the U.S. government have existed that would have warranted such a disclosure.been closed for all years prior to 1999;
(kB) The Company Target and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances any Target Subsidiary are valid and in full force and effect. Since the Applicable Date, the Company and its Subsidiaries have complied compliance in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding of and access to classified informationobligations, including those specified in the National Industrial Industry Security Program Operating Manual, 32 C.F.R. Part 117.DOD 5220.22-M (January 1995);
(lC) The Company Target and its Subsidiaries any Target Subsidiary have reached agreement with appropriate representatives of the Governmental Authority approving and closing all indirect costs charged to Government Contracts for each of the years in the period 1997-2001, and those years are closed;
(D) Target and any Target Subsidiary are not currently limited, prohibited subject to any forward pricing rate agreements;
(E) all of the product or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted service warranties and guarantees extended by the Company Target or any Target Subsidiary currently in effect are contained therein, there have not been any modifications to or deviations from such warranties and guarantees and no written claims, or claims threatened in writing, exist against Target or any Target Subsidiary with respect to such warranties and guarantees;
(F) all reports, documents and notices required to be filed, maintained or furnished with or to any Governmental Authority by Target or any Target Subsidiary have been so filed, maintained or furnished and all such reports, documents and notices were complete and correct in all material respects on the date filed or furnished;
(G) Target and any Target Subsidiary are not aware of its Subsidiaries any costs, in connection with any Material Company Government Contract and made available work-in-progress, with respect to Parent or its outside legal counsel prior which there is any reason to believe will not be covered by the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law).current contract price;
(mH) To Target and any Target Subsidiary are in compliance with all aspects of the extent applicable, (i) Foreign Corrupt Practices Act and the Company and its Subsidiaries comply with DFARS 252.204Anti-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise Kickback Act and, to the Knowledge knowledge of Target, there is no basis for any claim to be brought against Target under either the CompanyForeign Corrupt Practices Act or the Anti-Kickback Act;
(I) to the knowledge of Target, no circumstances Target and any Target Subsidiary have existed since never received a negative performance rating on any Government Contract; and
(J) to the Applicable Date that would knowledge of Target, within the five years preceding the Effective Time, Target and any Target Subsidiary have warranted such a reportnot received any notice of deficiency from any Governmental Authority in any area of service or production.
Appears in 1 contract
Samples: Merger Agreement (Axtive Corp)
Government Contracts. Except as disclosed in Schedule 3.24:
(a) Since With respect to each Government Contract or Bid to which the Applicable DateCompany and/or any of its Subsidiaries is a party: (i) all representations and certifications were current, accurate and complete when made, and the Company and its Subsidiaries have fully complied with all such representations and certifications; (ii) no allegation has been made, either orally or in all material respects with the terms and conditions of each Material Company Government Contract and Material Company Bid as required, including all clauses, provisions and requirements incorporated expressly by reference or by operation of Law therein (including, but not limited to, and as may be applicable, the Truthful Cost and Pricing Data Act; the Service Contract Act; the Buy America Act; the Trade Agreements Act; the Procurement Integrity Act; the Cost Accounting Standards; and applicable and material Federal Acquisition Regulation (“FAR”), Department of Defense FAR Supplement (“DFARS”) and agency FAR supplement clauses in any Material Company Government Contract or Material Company Bid).
(b) Since the Applicable Date, all representations, certifications and disclosures made by the Company and its Subsidiaries with respect to any Government Contract or Company Bid were current, accurate and complete at the time of disclosure (or have been formally corrected or otherwise finally resolved with a Governmental Entity), in each case, in all material respects, as of their effective date.
(c) Since the Applicable Date through the date of this Agreement, no Governmental Entity nor any prime contractor or subcontractor has notified the Company or any of its Subsidiaries, in writing or, to the Knowledge of the Company, orallywriting, that the Company or any of its Subsidiaries has, is in breach or is alleged to have, breached or violated in violation of any material respect any Lawstatutory, representation, certification, disclosure, clause, provision regulatory or requirement pertaining to any Government Contract or Company Bid.
contractual requirement; (diii) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has, since the Applicable Date, received or is subject to any notice of no termination for convenience, notice of termination for default, stop work order, material cure notice or material show cause notice (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements) (or, in the case of Contracts governed by Laws other than the state or federal Laws of the United States, the functional equivalents thereof, if any) pertaining to any Material Company Government Contract, and, since the Applicable Date, no Governmental Entity has, to the Knowledge of the Company, threatened to issue any such notice. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral notice from any Governmental Entity pertaining to any Material Company Government Contract indicating that it intends to cancel or otherwise adversely modify in any material respect its relationship with the Company or its Subsidiaries.
(e) Since the Applicable Date, no material written or, to the Knowledge of the Company, oral claim (other than any such claim that has been formally corrected or otherwise finally resolved with the applicable Governmental Entityissued; (iv) under the United States civil or criminal False Claims Act, federal or state fraud statutes (as such concept is defined under the state or federal Laws of the United States) or other criminal Law has been made or has been pending against the Company or its Subsidiaries in connection with any Government Contract to which the Company or its Subsidiaries is a party.
(f) To the Knowledge of the Company, as of the date of this Agreement, there exists no outstanding asserted disputes or claims for an amount cost in excess of $25,000,000 between the Company or any of its Subsidiaries, on the one hand, and either the applicable Governmental Entity or any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any Government Contract or Company Bid.
(g) Since the Applicable Date, neither the Company nor any of its Subsidiaries has received in writing any material adverse or negative past performance evaluations or ratings in connection with any Material Company Government Contract 200,000 incurred by any Governmental Entity
(h) Since the Applicable Date, (i) neither the Company nor any of its Subsidiaries has been the subject of a written finding of non-responsibility or ineligibility for government contracting and (ii) neither the Company, any of its Subsidiaries nor any director or officer of the Company or its Subsidiaries has been debarred or suspended, or to the Knowledge of the Company proposed for a finding of debarment or suspension, from participation in the award of Contracts or subcontracts for or with any Governmental Entity (excluding for this purpose ineligibility to bid on certain Contracts due to generally applicable bidding requirements).
(i) As of the date of this Agreement, (i) no costs incurred by the Company or any of its Subsidiaries pertaining to any individual Company Government Contract have their respective subcontractors has been questioned, proposed for disallowance, questioned or deemed finally disallowed, in each case, in writing by a Governmental Entity and in an amount in excess of $10,000,000, which costs have not been reserved, reflected in the consolidated financial statements of the Company and its Subsidiaries, or otherwise resolved and ; (iiv) no payment money due to the Company or any of its Subsidiaries pertaining to any Material Company Government Contract has been (or has threatened to be) withheld or set off; (vi) no request for a contract price adjustment based on a claimed disallowance by a Governmental Entity or claim of defective pricing or mischarging of any kind has been made; and (vii) no claim or request for equitable adjustment or other demand by the Company or any Subsidiary against any Governmental Entity or any third party has been made, nor has any claim been made and to withhold or set off moneythe best of the Company's knowledge, in each case, in an amount in excess of $10,000,000no basis therefor exists.
(jb) Since Neither the Applicable DateCompany, (i) neither the Company nor any of its Subsidiaries, any of their respective affiliates, nor any of the respective directors, officers or employees, nor, to the Knowledge of the Company, any consultants or agents of the Company 's or any of its Subsidiaries Subsidiaries' directors, officers, employees, agents or consultants is (in each case in their capacity as such), is or for the last three years has been been) (i) under administrative, civil or criminal investigation, indictment or criminal information by information, audit or internal investigation with respect to any alleged irregularity, misstatement or omission regarding a Government Contract or Bid; or (ii) temporarily or permanently suspended, debarred or enjoined from doing business with any Governmental Entity or from engaging in or continuing any conduct or practice in connection with respect to the award or performance of any Government Contract, the subject of any actual or threatened in writing, “whistleblower” or “qui tam” lawsuit, or any audit or, to the Knowledge of the Company, investigation activities of the Company or any of the Subsidiaries or declared nonresponsible or ineligible for government contracting. None of the Company, any of its Subsidiaries or any of their respective affiliates has made a voluntary disclosure to any Governmental Entity with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract, (ii) to the Knowledge Contract or Bid. The Company knows of the Company, there is no current or outstanding civil investigative demand or subpoena issued to the Company or any of its Subsidiaries, nor any of its or their respective directors, officers or employees (in each case in their capacity as such), under the civil or criminal False Claims Act relating to any Government Contract and (iii) neither the Company nor any of its Subsidiaries has made any written disclosure under the FAR mandatory disclosure or payment provisions (including, but not limited to, FAR 52.203-13(b)(3)) to any Governmental Entity, and no circumstances have existed that would have warranted such a disclosure.
(k) The Company and its Subsidiaries and their respective employees possess all facility and personnel security clearances necessary to perform all Material Company Government Contracts, and all such security clearances are valid and in full force and effect. Since warrant the Applicable Date, institution of suspension or debarment proceedings or the Company and its Subsidiaries have complied in all material respects with all security obligations incorporated in any Material Company Government Contract and all national security obligations applicable to the Company and its Subsidiaries relating to the safeguarding finding of and access to classified information, including those specified in the National Industrial Security Program Operating Manual, 32 C.F.R. Part 117.
(l) The Company and its Subsidiaries are not currently limited, prohibited nonresponsibility or otherwise restricted from performing or bidding for any material work or material future business opportunities due to “organizational conflicts ineligibility of interest” (as defined in FAR Subpart 9.5) or Material Company Government Contract terms or provisions, except pursuant to existing organizational conflicts of interest mitigation plans submitted by the Company or any of its Subsidiaries in connection with any Material Company Government Contract and made available to Parent or its outside legal counsel prior to the date of this Agreement (except to the extent making such Material Company Government Contract available to Parent is prohibited by applicable national security or similar Law)future.
(m) To the extent applicable, (i) the Company and its Subsidiaries comply with DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting in all material respects and (ii) since the Applicable Date, the Company and its Subsidiaries have not submitted any cyber incident report pursuant to DFARS 252.204-7012(c) or otherwise and, to the Knowledge of the Company, no circumstances have existed since the Applicable Date that would have warranted such a report.
Appears in 1 contract
Samples: Merger Agreement (Harding Lawson Associates Group Inc)
