Purchaser’s Warranties and Representations. 7.1. The Purchaser warrants and represents to Transworld Media and the Shareholders, with the intent that Transworld Media and the Shareholders will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that: (a) the Purchaser is a company duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the power, authority and capacity to enter into this Agreement and to carry out its terms; (b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors; (c) to the knowledge of the Purchaser, the Purchaser has filed all reports and documents required to be filed with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations thereto; (d) the sole director and officer of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary (e) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary (f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a par value of US$0.001 per share, of which 1,000,000 common shares are issued and outstanding as fully paid and non- assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding; (g) upon completion of the Arrangement, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares of the Purchaser, free and clear of all Liens and restrictions on transfer; (h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F"; (i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media; (j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto; (k) the Purchaser has all corporate power and authority to carry on its business as presently carried on; (l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date; (m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement; (n) the Purchaser has not guaranteed, or agreed to guarantee, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements; (o) there are not any shareholders of the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders; (p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees; (q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes; (r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 of the Purchaser and the said financial statements are substantially correct in every particular way; (s) to the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect have been duly recorded, withheld and collected and have been paid over to the proper governmental authorities or held by them for such payment; (t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would result in the breach of any term or provision of, or constitute a default under any obligation binding on the Purchaser; (u) to the knowledge of the Purchaser, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware; (v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware; (w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations; (x) the making of this Agreement, and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or the acceleration of any indebtedness under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaser; (y) to the knowledge of the Purchaser, the Purchaser has been assessed for federal and state income tax for all years to and including the fiscal year of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable; (z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements; (aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment of the Purchaser; (bb) to the knowledge of the Purchaser, the Purchaser has made all elections required to be made under applicable income tax legislation in connection with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and (cc) the Purchaser has no part-time or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G".
Appears in 1 contract
Samples: Plan of Arrangement and Share Exchange Agreement (North Coast Partners Inc)
Purchaser’s Warranties and Representations. 7.1. 8.1 The Purchaser represents and warrants to and represents to Transworld Media and covenants with, the ShareholdersVendor, with the intent that Transworld Media and the Shareholders Vendor will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that:
(a) the Purchaser has the power and capacity and good and sufficient right and authority to enter into this Agreement on the terms and conditions herein set forth;
(b) the Purchaser is a company duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the powerDelaware, authority and capacity to enter into this Agreement and to carry out its termsUSA;
(bc) the Purchaser has the authority to issue that number of its common shares pursuant to section 2.2(b)(i) of this Agreement to the Vendor and that the common shares issuable to the Vendor will be subject to a minimum 12 month hold period and thereafter can be sold in accordance with Rule 144 issued under the Securities Act of 1933, as amended;
(d) the Purchaser will deliver to the Vendor on the Closing Date, a legal opinion from its British Columbia solicitors or its U.S. solicitors that the common shares to be issued to the Vendor subject to a minimum hold period of 12 months and thereafter will be subject to the limitations, including but not limited to, the volume limitations set forth in subsection K of Rule 144 issued under the Securities Act of 1933 as amended and that the legend on the share certificate for said common shares will read as follows: "These shares have not been registered under th Securities Act of 1933, as amended, and may not be sold or transferred unless an effective registration statement with respect to such shares is in effect or pursuant to a then applicable exemption."
(e) the Purchaser has the requisite U.S. regulatory approval to issue the common shares to the Vendor pursuant to section 2.2(b)(i);
(f) the Purchaser shall continue to operate the business of the Company without any material changes whatsoever included but not limited to changes to the network system, the service providers, the web page, the pricing policies, the accounting systems and all other general administrative and operating standards of the Company until the 42nd day next following the Closing Date or such earlier time as is mutually agreed upon by the parties hereto;
(g) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) to the knowledge of the Purchaser, the Purchaser has filed all reports and documents required to be filed with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations thereto;
(d) the sole director and officer of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary
(e) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a par value of US$0.001 per share, of which 1,000,000 common shares are issued and outstanding as fully paid and non- assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(g) upon completion of the Arrangement, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";
(i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(n) the Purchaser has not guaranteed, or agreed to guarantee, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements;
(o) there are not any shareholders of the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 of the Purchaser Pruchaser and the said financial statements are substantially correct in every particular way;
(s) to the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect have been duly recorded, withheld and collected and have been paid over to the proper governmental authorities or held by them for such payment;
(t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would herein provided for has not and will not result in the breach or violation of any term or provision provisions of, or constitute a default under any obligation binding on the Purchaser;
(u) to the knowledge of the Purchaserunder, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations;
(x) the making of this Agreement, and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or cause the acceleration of any indebtedness under obligation under:
(i) any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority commitment or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser it is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaserits properties are bound;
(yii) to the knowledge any provision of the Purchaser, the Purchaser has been assessed for federal and state income tax for all years to and including the fiscal year constating documents or by-laws or resolutions of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments board of corporate taxes due and payable;
directors (z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment committee thereof) or shareholders of the Purchaser;
(bbiii) to the knowledge any judgement, decree, order or award of any court, government body or arbitrator having jurisdiction over the Purchaser;
(iv) any license, the Purchaser has made all elections required to be made under applicable income tax legislation in connection with any distributions permit, approval, consent or authorization held by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; andor
(ccv) the Purchaser has no part-time any applicable law, statute, ordinance regulation or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"rule.
Appears in 1 contract
Purchaser’s Warranties and Representations. 7.1. 11.1 The Purchaser warrants and represents to Transworld Media and the ShareholdersVendors, with the intent that Transworld Media and the Shareholders Vendors will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, herein that:
(a) the Purchaser is a company corporation duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the power, authority and capacity to enter into this Agreement and to carry out its terms;
(b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) no consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority is required by or with respect to Purchaser in connection with the knowledge execution and delivery of this Agreement by the Purchaser or the consummation by the Purchaser of the Purchasertransactions contemplated hereby, except for such consents, approvals, orders, authorizations, registrations, declarations, qualifications or filings as may be required by the Purchaser has filed all reports OTC BB and documents required to be filed under applicable federal and state securities laws in connection with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations theretotransactions set forth herein;
(d) the sole director and officer authorized capital stock of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary
is One Hundred Ten Million (e110,000,000) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a without par value of US$0.001 per sharevalue, of which 1,000,000 Two Million, Seven Hundred Fifty Thousand (2,750,000) common shares are issued and outstanding as of the date hereof, fully paid and non- non-assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(ge) upon completion of there is no litigation, proceeding or governmental investigation in progress, pending, threatened or contemplated against or relating to the ArrangementPurchaser, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares business of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";
(i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(nf) the following documents have been filed under the Purchaser's former name, Ballynagee Acquisition Corp., with the SEC under the Securities Exchange Act and the rules and regulations promulgated thereto: Schedule 14C Information Statement filed October 13, 1999, Form 8K dated September 20, 1999, Pre 14C filed October 1, 1999 and Form 10SB filed July 30, 1999. As of their respective filing dates, the Purchaser's SEC filings complied in all material respects with the Securities Exchange Act, as of their respective filing dates, the Purchaser's SEC filings did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading;
(g) the Purchaser has not guaranteedShares to be issued to the Vendors hereunder on the Closing Date, or agreed to guaranteewill be validly issued, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements;fully paid and non-assessable; and
(oh) there are not any shareholders of no orders ceasing or suspending trading in the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 securities of the Purchaser and to the said financial statements are substantially correct in every particular way;
(s) to best of the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect no proceedings for this purpose have been duly recordedinstituted or are pending, withheld and collected and have been paid over to the proper governmental authorities contemplated or held by them for such payment;
(t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would result in the breach of any term or provision of, or constitute a default under any obligation binding on the Purchaser;
(u) to the knowledge of the Purchaser, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations;
(x) the making of this Agreement, and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or the acceleration of any indebtedness under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaser;
(y) to the knowledge of the Purchaser, the Purchaser has been assessed for federal and state income tax for all years to and including the fiscal year of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable;
(z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment of the Purchaser;
(bb) to the knowledge of the Purchaser, the Purchaser has made all elections required to be made under applicable income tax legislation in connection with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and
(cc) the Purchaser has no part-time or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"threatened.
Appears in 1 contract
Purchaser’s Warranties and Representations. 7.1. 7.1 The Purchaser warrants and represents to Transworld Media and the ShareholdersVendors, with the intent that Transworld Media and the Shareholders Vendors will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, herein that:
(a) the Purchaser is a company corporation duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the power, authority and capacity to enter into this Agreement and to carry out its terms;
(b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) no consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority is required by or with respect to Purchaser in connection with the knowledge execution and delivery of this Agreement by the Purchaser or the consummation by the Purchaser of the Purchasertransactions contemplated hereby, except for such consents, approvals, orders, authorizations, registrations, declarations, qualifications or filings as may be required by the Purchaser has filed all reports OTC BB and documents required to be filed under applicable federal and state securities laws in connection with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations theretotransactions set forth herein;
(d) the sole director and officer authorized capital stock of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary
is One Hundred Ten Million (e110,000,000) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a without par value of US$0.001 per sharevalue, of which 1,000,000 13,010,000 common shares are issued and outstanding as of the date hereof, fully paid and non- non-assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(ge) upon completion of there is no litigation, proceeding or governmental investigation in progress, pending, threatened or contemplated against or relating to the ArrangementPurchaser, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares business of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";
(i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(nf) the following documents have been filed under the Purchaser's former name, Ballynagee Acquisition Corp., with the SEC under the Securities Exchange Act and the rules and regulations promulgated thereto: Schedule 14C Information Statement filed October 13, 1999, Form 8K dated September 20, 1999, Pre 14C filed October 1, 1999 and Form 10SB filed July 30, 1999. As of their respective filing dates, the Purchaser's SEC filings complied in all material respects with the Securities Exchange Act, as of their respective filing dates, the Purchaser's SEC filings did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading;
(g) the Purchaser has not guaranteedShares to be issued to the Vendors hereunder on the Closing Date, or agreed to guaranteewill be validly issued, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statementsfully paid and non-assessable;
(oh) there are not any shareholders of no orders ceasing or suspending trading in the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 securities of the Purchaser and to the said financial statements are substantially correct in every particular way;
(s) to best of the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect no proceedings for this purpose have been duly recordedinstituted or are pending, withheld and collected and have been paid over to the proper governmental authorities contemplated or held threatened by them for such payment;any securities regulatory body; and
(ti) the Purchaser there is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would result in the breach of any term or provision of, or constitute a default under any obligation binding on the Purchaser;
(u) to the knowledge of the Purchaser, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations;
(x) the making of this Agreement, and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or the acceleration of any indebtedness under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaser;
(y) to the knowledge of the Purchaser, the Purchaser has been assessed no basis for federal and state income tax for all years to and including the fiscal year of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable;
(z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreementsactions, waivers suits, judgments, investigations or other arrangements providing for an extension of time with respect to the filing of any tax return by proceedings outstanding or payment of any tax, governmental charge pending or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors threatened against or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment of the Purchaser;
(bb) to the knowledge of the Purchaser, affecting the Purchaser has made all elections required at law or in equity or before or by any court or federal, provincial, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency and the Purchaser is not a party to be made under applicable income tax legislation in connection or threatened with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and
(cc) the Purchaser has no part-time or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"litigation.
Appears in 1 contract
Purchaser’s Warranties and Representations. 7.1. 7.1 The Purchaser warrants and represents to Transworld Media ICI and DuPont that:
7.1.1 subject to satisfaction of the ShareholdersConditions Precedent (in each case in relation to the obligations referred to in sub-Clause 2.1 but not in relation to any other obligation):
(i) it has the requisite power and authority to enter into and to perform this agreement;
(ii) it has obtained and satisfied all corporate, regulatory and other approvals, or any other significant conditions, necessary to execute and perform this agreement;
(iii) this agreement constitutes the legally valid and binding obligations of the Purchaser enforceable in accordance with its terms; and
(iv) compliance with the intent that Transworld Media terms of this agreement and the Shareholders each relevant Implementation Agreement will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, thatnot constitute a default under any provision of:
(a) the Purchaser is a company duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the power, authority and capacity to enter into this Agreement and to carry out its terms;
(b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) to the knowledge of the Purchaser, the Purchaser has filed all reports and documents required to be filed with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations thereto;
(d) the sole director and officer of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary
(e) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a par value of US$0.001 per share, of which 1,000,000 common shares are issued and outstanding as fully paid and non- assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(g) upon completion of the Arrangement, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights by-laws or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";other constitutional documents; or
(i) there are no existing agreements any order, judgment or contemplated agreementsdecree; or (ii) any statute, written rule or oral, of any nature regulation or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(jiii) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(n) the Purchaser has not guaranteed, or agreed to guarantee, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements;
(o) there are not any shareholders of the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 of the Purchaser and the said financial statements are substantially correct in every particular way;
(s) to the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect have been duly recorded, withheld and collected and have been paid over to the proper governmental authorities or held by them for such payment;
(t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character by which would prevent the consummation Purchaser is bound; and
7.2 none of the transactions contemplated by this AgreementPurchaser and its Affiliates has employed any investment banker, broker or finder, or incurred any liability for any brokerage fees, commissions, finder's fees or similar payments in connection with the Proposed Transactions, for which would result ICI or DuPont or their Affiliates (excluding, following the Completion Date, the Companies and LPC) may be liable. 8 DUPONT WARRANTIES AND REPRESENTATIONS DuPont warrants and represents to the Purchaser that:
8.1 subject to satisfaction of the Conditions Precedent (in each case in relation to the breach of obligations referred to in sub-Clause 2.1 but not in relation to any term or provision ofother obligation):
(i) it has the requisite power and authority to enter into and to perform this agreement;
(ii) it has obtained and satisfied all corporate, regulatory and other approvals, or any other significant conditions, necessary to execute and perform this agreement;
(iii) this agreement constitutes the legally valid and binding obligations of DuPont enforceable in accordance with its terms; and
(iv) compliance with the terms of this agreement and each relevant Newco Implementation Agreement will not constitute a default under any obligation binding on the Purchaserprovision of:
(a) DuPont's by-laws or other constitutional documents; and
(i) any order, judgment or decree; or (ii)any statute, rule or regulation; or (iii) any other restriction of any kind by which DuPont is bound;
(u) to the knowledge 8.2 none of the PurchaserDuPont or its Affiliates has employed any investment banker, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed broker or finder, or incurred any liability for any brokerage fees, commissions, finder's fees or similar payments in connection with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to Newco Sale Agreements for which the Purchaser or its operations;
(x) the making of this Agreement, and the completion Affiliates or any of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or the acceleration of any indebtedness under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaser;
(y) to the knowledge of the Purchaser, the Purchaser has been assessed for federal and state income tax for all years to and including the fiscal year of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to Companies may be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable;
(z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment of the Purchaser;
(bb) to the knowledge of the Purchaser, the Purchaser has made all elections required to be made under applicable income tax legislation in connection with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and
(cc) the Purchaser has no part-time or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"liable.
Appears in 1 contract
Purchaser’s Warranties and Representations. 7.1. 6.1 The Purchaser warrants and represents to Transworld Media and the ShareholdersVendors, with the intent that Transworld Media and the Shareholders Vendors will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, that:
(a) the Purchaser is a company corporation duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware British Columbia and has the power, authority and capacity to enter into this Agreement and to carry out its terms;
(b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized authorised by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) to the knowledge Purchaser is not a "non-Canadian" within the meaning of the Purchaser, the Purchaser has filed all reports and documents required to be filed with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations theretoInvestment Canada Act;
(d) the sole director assets and officer gross revenues of the Purchaser as and its affiliates are such that the transactions contemplated herein are exempted from the provisions of Part IX of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - SecretaryCompetition Act;
(e) as at assuming that all corporate and regulatory procedures, consents and authorisations required by the Closing Date, Transworld Media shall nominate and appoint two (2) persons Purchaser in conformity to the requirements respect of the laws issue of the Delaware, Spectrum Shares and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors performance of the Purchaser, and the officers other obligations of the Purchaser shall hereunder are duly and validly acquired or complied with, as the case may be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a par value of US$0.001 per share, of which 1,000,000 common shares are issued and outstanding as fully paid and non- assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(g) upon completion of the Arrangement, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";
(i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(n) the Purchaser has not guaranteed, or agreed to guarantee, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements;
(o) there are not any shareholders of the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 of the Purchaser and the said financial statements are substantially correct in every particular way;
(s) to the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect have been duly recorded, withheld and collected and have been paid over to the proper governmental authorities or held by them for such payment;
(t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would result in the breach of any term or provision of, or constitute a default under any obligation binding on the Purchaser;
(u) to the knowledge of the Purchaser, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations;
(x) the making of this Agreement, Agreement and the completion issuance of the transactions Spectrum Shares as contemplated hereby and the performance of and compliance with the terms hereof, of the Purchaser's obligations hereunder does not and will not:
(i) conflict with or result in the a breach of or violate any of the acceleration terms, conditions, or provisions of the Memorandum or Articles of Association of the Purchaser;
(ii) conflict with or result in a breach of or violate any of the terms, conditions or provisions of any indebtedness law, judgement, order, injunction, decree, regulation or ruling of any court or Canadian governmental authority, domestic or foreign, to which the Purchaser is subject or constitute or result in a default under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority contract or other instrument commitment to which the Purchaser is a party party;
(iii) give to any Party any remedy, cause of action, right of termination, cancellation or is bound acceleration in or with respect to any judgmentagreement, decreecontract, order, rule or regulation of any court or administrative body by commitment to which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchasera Party;
(yiv) give to the knowledge of the Purchaserany Canadian government or governmental authority, the Purchaser has been assessed for federal and state income tax for all years to and any regional district, district or municipality or any subdivision thereof, including the fiscal year of the Purchaser ended on the Purchaser's Statement Dateany Canadian governmental department, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residentscommission, bureau, board, or otherwise and has paid all instalments administrative agency any right of corporate taxes due and payable;
(z) to the knowledge termination, cancellation, or suspension of, or constitute a breach of the Purchaseror result in a default under any permit, all tax returnslicense, filings and reports of the Purchaser required by law to be filed prior to the date hereofcontrol, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable authority issued to the Purchaser have been filed and are true, complete which is necessary or desirable in connection with the conduct and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, operation of the business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officersthe ownership, directors leasing or employeesuse of the business assets of the Purchaser; or
(v) constitute a default by the Purchaser or an event which, with the giving of notice or lapse of time or both, might constitute an event of default or non-observance under any agreement, contract, indenture or other instrument relating to any indebtedness of the Purchaser which would give any Party the right to accelerate the maturity for the payment of any amount payable under that agreement, contract, indenture, or other instrument;
(f) there are no contingent tax liabilities facts or any grounds circumstances of which would prompt the Purchaser is aware, or of which it ought to be aware, at the Closing Date which could result in a re-assessment material reduction in the Spectrum Share Price as at the close of business on the Purchaser;
(bb) last business day prior to the knowledge Closing Date. For the purposes of the Purchaser, the Purchaser has made all elections required this clause "material" shall be deemed to be made under applicable income tax legislation in connection with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and
(cc) the Purchaser has no part-time mean a reduction of 10% or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"more.
Appears in 1 contract
Samples: Share Purchase Agreement (Spectrum Signal Processing Inc)
Purchaser’s Warranties and Representations. 7.1. 9.1 The Purchaser warrants and represents to Transworld Media and the ShareholdersVendor, with the intent that Transworld Media and the Shareholders Vendor will rely thereon in entering into this Agreement and in concluding the purchase and sale contemplated herein, herein that:
(a) the Purchaser is a company corporation duly incorporated, validly existing and presently in good standing under the laws of the State of Delaware and has the power, authority and capacity to enter into this Agreement and to carry out its terms;
(b) the execution and delivery of this Agreement and the completion of the transactions contemplated hereby has been duly and validly authorized by all necessary corporate action on the part of the Purchaser, and this Agreement constitutes a legal, valid and binding obligation of the Purchaser in accordance with its terms except as limited by laws of general application affecting the rights of creditors;
(c) no consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority is required by or with respect to Purchaser in connection with the knowledge execution and delivery of this Agreement by the Purchaser or the consummation by the Purchaser of the Purchasertransactions contemplated hereby, except for such consents, approvals, orders, authorizations, registrations, declarations, qualifications or filings as may be required by the Purchaser has filed all reports OTC BB and documents required to be filed under applicable federal and state securities laws in connection with the Secretary of State of Delaware and the Commission, and is not in default of any requirements of any applicable corporate and securities laws, and the rules and regulations theretotransactions set forth herein;
(d) the sole director and officer authorized capital stock of the Purchaser as of the date of execution of this Agreement is: Director: Wxxx Xxxx Ling Officers: Wxxx Xxxx Ling - Chief Executive and Chief Financial Officers Dxx Xxxxxxxx - Secretary
is One Hundred Ten Million (e110,000,000) as at the Closing Date, Transworld Media shall nominate and appoint two (2) persons in conformity to the requirements of the laws of the Delaware, and Mxx Xxxxxxxxxxxxx and Wxxx Xxxx Ling to act as the directors of the Purchaser, and the officers of the Purchaser shall be: Mxx Xxxxxxxxxxxxx - Chief Executive Officer Wxxx Xxxx Ling - Chief Financial Officer Dxx Xxxxxxxx - Secretary
(f) at the date of this Agreement, the authorized capital of the Purchaser consists of 21,000,000 shares divided into 20,000,000 common shares with a without par value of US$0.001 per sharevalue, of which 1,000,000 Two Million, Seven Hundred Fifty Thousand (2,750,000) common shares are issued and outstanding as of the date hereof, fully paid and non- non-assessable, and 1,000,000 preferred shares with a par value of US$0.001 per share, of which no preferred shares are issued and outstanding;
(ge) upon completion of there is no litigation, proceeding or governmental investigation in progress, pending, threatened or contemplated against or relating to the ArrangementPurchaser, the Shareholders shall be the beneficial and registered holders of the Purchaser's Shares as fully paid and non- assessable common shares business of the Purchaser, free and clear of all Liens and restrictions on transfer;
(h) there are no options, warrants, rights or agreements outstanding with respect to the issued or unissued shares of the Purchaser except as disclosed in Schedule "F";
(i) there are no existing agreements or contemplated agreements, written or oral, of any nature or kind whatsoever to which the Purchaser is a party, except those disclosed as set out in Schedule "G" attached hereto, and true copies of all such agreements set out in Schedule "G" have been delivered to Transworld Media;
(j) as at the date of this Agreement, there are no liabilities, contingent or otherwise, including assessed or unassessed income tax liabilities, nor is there any undisclosed litigation, proceeding or investigation pending or threatened against the Purchaser, its property or business, nor does the Purchaser know, or have grounds to know of any basis for any litigation, proceeding or investigation against the Purchaser, its properties or business, other than that which has been disclosed to Transworld Media as set out in Schedule "H" attached hereto;
(k) the Purchaser has all corporate power and authority to carry on its business as presently carried on;
(l) the Purchaser's Financial Statements as set out in Schedule "I" were prepared in accordance with generally accepted United States accounting principles applied on a basis consistent with prior years, are true and correct in every material respect and present fairly and accurately the financial condition and position of the Purchaser as at the Purchaser's Statement Date and the results of its operations for the year ended on the Purchaser's Statement Date; and no material changes in the financial position of the Purchaser have occurred since the Purchaser's Statement Date;
(m) there is no Indebtedness of the Purchaser which is not disclosed or reflected in the Purchaser's Financial Statements, except the liabilities of the Purchaser as shown in Schedule "H" hereto, and the liabilities of the Purchaser will not materially change prior to the Closing except for the costs of effecting the transactions contemplated by this Agreement;
(nf) the following documents have been filed under the Purchaser's former name, Ballynagee Acquisition Corp., with the SEC under the Securities Exchange Act and the rules and regulations promulgated thereto: Schedule 14C Information Statement filed October 13, 1999, Form 8K dated September 20, 1999, Pre 14C filed October 1, 1999 and Form 10SB filed July 30, 1999. As of their respective filing dates, the Purchaser's SEC filings complied in all material respects with the Securities Exchange Act, as of their respective filing dates, the Purchaser's SEC filings did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading;
(g) the Purchaser has not guaranteedShares to be issued to the Vendor hereunder on the Closing Date, or agreed to guaranteewill be validly issued, any Indebtedness or other obligation of any Person except as described in the Purchaser's Financial Statements;fully paid and non-assessable; and
(oh) there are not any shareholders of no orders ceasing or suspending trading in the Purchaser indebted to the Purchaser and the Purchaser is not indebted to any of its shareholders;
(p) the Purchaser is not subject to any collective bargaining agreement, pension or retirement plan, bonus or profit sharing scheme or other employee benefit plan, agreement or arrangement affecting employees;
(q) the Purchaser has no bank, trust, savings, chequing or other accounts or deposits, safety deposit boxes or other depositories except as set out in Schedule "J", which Schedule is a true and complete list showing the name of each bank, trust company or other financial institution in which the Purchaser has accounts, deposits or safety deposit boxes;
(r) attached hereto as part of Schedule "I" is the financial statements filed by the Purchaser with the Commission for the financial year ended June 30, 2004 securities of the Purchaser and to the said financial statements are substantially correct in every particular way;
(s) to best of the knowledge of the Purchaser, all taxes and other assessments which the Purchaser is required by law to withhold or to collect no proceedings for this purpose have been duly recordedinstituted or are pending, withheld and collected and have been paid over to the proper governmental authorities contemplated or held by them for such payment;
(t) the Purchaser is not subject to any mortgage, Lien, lease, agreement, instrument or any other restriction of any kind or character which would prevent the consummation of the transactions contemplated by this Agreement, or which would result in the breach of any term or provision of, or constitute a default under any obligation binding on the Purchaser;
(u) to the knowledge of the Purchaser, the minute books and corporate records of the Purchaser contain a true and complete record of all resolutions of the directors and shareholders and all records required to be maintained under the corporate laws of Delaware;
(v) all alterations to the Articles and By-laws of the Purchaser since its incorporation have been duly approved by the shareholders of the Purchaser and filed with the Secretary of State of Delaware;
(w) to the knowledge of the Purchaser, the Purchaser is not in breach of any statute, regulation or by-law applicable to the Purchaser or its operations;
(x) the making of this Agreement, and the completion of the transactions contemplated hereby and the performance of and compliance with the terms hereof, does not conflict with or result in the breach of or the acceleration of any indebtedness under any terms, provisions or conditions of, or constitute default under the Articles or By-laws of the Purchaser or any indenture, mortgage, deed of trust, agreement, lease, franchise, certificate, consent, permit, licence, authority or other instrument to which the Purchaser is a party or is bound or any judgment, decree, order, rule or regulation of any court or administrative body by which the Purchaser is bound or, to the knowledge of the Purchaser, any statute or regulation applicable to the Purchaser;
(y) to the knowledge of the Purchaser, the Purchaser has been assessed for federal and state income tax for all years to and including the fiscal year of the Purchaser ended on the Purchaser's Statement Date, and the Purchaser has withheld and remitted to the Internal Revenue Service or other applicable tax collecting authority all amounts required to be remitted respecting payments to employees or to non-residents, or otherwise and has paid all instalments of corporate taxes due and payable;
(z) to the knowledge of the Purchaser, all tax returns, filings and reports of the Purchaser required by law to be filed prior to the date hereof, including all federal and state income tax returns, all returns and filings pertaining to compensation of employees of the Purchaser for job related injuries required pursuant to any state or federal law and any other tax returns applicable to the Purchaser have been filed and are true, complete and correct in all material respects, and all taxes and other government charges, including all income, excise, sales, business and property taxes and other rates, charges, assessment, levies, duties, taxes, contributions, fees and licences required to be paid have been paid, and if not required to be paid as at the date hereof, have been accrued in the Purchaser's Financial Statements;
(aa) adequate provision has been made for taxes payable by the Purchaser for which tax returns are not yet required to be filed and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return by or payment of any tax, governmental charge or deficiency by the Purchaser, and to the knowledge of the Purchaser and its officers, directors or employees, there are no contingent tax liabilities or any grounds which would prompt a re-assessment of the Purchaser;
(bb) to the knowledge of the Purchaser, the Purchaser has made all elections required to be made under applicable income tax legislation in connection with any distributions by the Purchaser, and all such elections were true and correct and in the prescribed forms and were made within the prescribed time periods; and
(cc) the Purchaser has no part-time or full-time employees and no employment, consulting or management contract or commitment with any Person, including those with any director or officer of the Purchaser, whether oral, written, or implied, except as disclosed in Schedule "G"threatened.
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