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ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

ASSET PURCHASE AGREEMENT | Document Parties: BLUERIDGE SOLUTIONS, LC | GLOBAL MED TECHNOLOGIES, INC You are currently viewing:
This Asset Purchase Agreement involves

BLUERIDGE SOLUTIONS, LC | GLOBAL MED TECHNOLOGIES, INC

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Title: ASSET PURCHASE AGREEMENT
Governing Law: Virginia     Date: 8/6/2008
Industry: Software and Programming     Law Firm: Preston Gates;Snell Wilmer;Kirkpatrick Lockhart     Sector: Technology

ASSET PURCHASE AGREEMENT, Parties: blueridge solutions  lc , global med technologies  inc
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Execution Copy

 

ASSET PURCHASE AGREEMENT

      THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”) is entered into as of July 31, 2008, by and among BLUERIDGE SOLUTIONS, L.C. , a Virginia limited liability company d/b/a/ eDonor (“ Seller ”), and GLOBAL MED TECHNOLOGIES, INC. , a Colorado corporation (“ Buyer ”). Seller and Buyer are collectively referred to herein as the “ Parties ” and individually as a “ Party .”

RECITALS

      A.   Seller is engaged in providing a blood donor management platform to blood banks and other blood collection services (the “ Business ”); and

      B.   Buyer desires to purchase substantially all of the assets used by Seller in the Business and Seller desires to sell such assets of the Business to Buyer on the terms and conditions set forth herein.

AGREEMENT

      NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations, warranties, covenants and agreements set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows.

ARTICLE I
TRANSFER OF ASSETS

     Section 1.01     Defined Terms Capitalized terms used without definition have the meanings set forth in Article IX .

     Section 1.02    Transfer of Assets; Excluded Assets .

             (a)  Upon the terms and subject to the conditions of this Agreement and in reliance upon the representations, warranties and agreements herein set forth, the Parties agree that the Buyer shall purchase from Seller and Seller shall sell to Buyer, at the closing of the transactions contemplated by this Agreement (the “ Closing ”), all of the Transferred Assets free and clear of all Liens except for the Permitted Liens.

           (b)  Notwithstanding any other provision of this Agreement, Seller shall retain and shall not transfer to Buyer the assets listed on Schedule 1.02(b) (collectively, the “ Excluded Assets ”).

      Section 1.03    Assumption of Liabilities . Upon the terms and subject to the conditions of this Agreement and in reliance upon the representations, warranties and agreements herein set forth, the Parties agree that the Buyer shall assume, effective as of the Closing Date, and in due course timely perform, pay and discharge each of the liabilities set forth on Schedule 1.03 (collectively, the “ Assumed Liabilities ”).

      Section 1.04   Excluded Liabilities . Buyer does not hereby assume, and shall not at any time hereafter (including on or after the Closing Date (as defined below)) become liable for, any of the Liabilities of Seller or any of its Affiliates other than the Assumed Liabilities (collectively, the “ Excluded Liabilities ”). The Excluded Liabilities shall include, without limitation, the following Liabilities:

 


                     

(a)

any Liability whether presently in existence or arising after the Closing Date relating to an Excluded Asset;

 

 

 

 

(b)

subject to Section 5.04 , any Liability whether presently in existence or arising after the Closing Date relating to fees, commissions or expenses owed to any broker, finder, investment banker, attorney, accountant or other intermediary or advisor employed by Seller in connection with the transactions contemplated hereby;

 

 

 

 

(c)

any Liability the existence of which constitutes a breach of any representation or warranty of Seller hereunder;

 

 

 

 

(d)

any Liability for accounts payable of the Seller in existence as of the Closing Date;  

 

 

   

 

(e)

except for the Assumed Liabilities, any contingent Liabilities of Seller related toa ny transactions by Seller prior to the Closing Date;  

 

 

 

 

(f)

except as otherwise provided herein, any Liability for Taxes of Seller (including, without limitation, any transfer and/or sales taxes and any other Taxes relating to Seller’s operations prior to the Closing Date that may be imposed upon Buyer after the Closing Date);

 

 

 

 

(g)

any Liability arising under any of Seller’s Benefit Plans or any benefit plans of employees leased to Seller; and

   

 

 

 

                    

(h)

any Liability of Seller arising under this Agreement.  

  

 

 

      Section 1.05  

 

Payment of Purchase Price; Closing .  

 

 

 

 

(a)

In consideration for the Transferred Assets, in addition to Buyer’s assumption of the Assumed Liabilities, Buyer shall pay to Seller Five Million Dollars ($5,000,000) (the “ Purchase Price ”), which Purchase Price shall consist of:  

 

                                       

(i)      

Three Million Five Hundred Thousand Dollars ($3,500,000), payable upon Closing; and

 

 

 

(ii)      

Shares of restricted common stock of Global Med with an aggregate value of One Million Five Hundred Thousand Dollars ($1,500,000) (the “ Shares ”), which Shares shall be subject to the restrictions set forth in Section 1.07 below and issued at the price as determined in Section 1.08 below.

 

 

 

                                (b)      

At the Closing, Buyer shall:

 

 

            (i)      

make a cash payment to Seller in the amount of Three Million Five Hundred Thousand Dollars ($3,500,000) (the “ Cash Closing Payment ”);

 

 

           (ii)      

deliver to the Seller, free and clear of all Liens, the stock certificates representing the Shares, in such denominations as the Seller may request, dated the Closing Date, in the name of the Seller; and

 

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                                (iii)

    

deliver to Michael Pandelakis and Andrew Pandelakis fully executed employment agreements in the forms attached hereto as Exhibits A and B (together, the “ Employment Agreements ”).

                            (c)  At the Closing, each Party shall deliver or cause to be delivered to the other Party such bills of sale, certificates of title, endorsements, agreements, consents, assignments and other good and sufficient instruments of conveyance and assignment of such rights as the Parties and their respective counsel shall deem reasonably necessary or appropriate to vest in Buyer all of Seller’s right, title and interest in, to and under the Transferred Assets and to consummate the transactions contemplated by this Agreement.

                            (d)  At the Closing, each of Buyer and Seller shall provide the other with a fully signed resolution authorizing its actions hereunder.

                            (e)  The Closing shall be held, unless otherwise agreed by the Parties hereto, within two   (2) Business Days of the satisfaction of the terms of Article VII hereof (the “ Closing Date ”).

      Section 1.06     Purchase Price Allocation .

                           
(a)   The Parties hereto agree that the Purchase Price shall be allocated among the Transferred Assets for purposes of complying with Section 1060 of the Code and making any required filings under state or local law as follows:

Cash  

 

$

191,000  

Fixed Assets  

 

$

209,000  

Goodwill  

 

$

4,600,000  

Total  

 

$

5,000,000  

 

                            (b)   Buyer and Seller shall report the tax consequences of the transactions in a manner consistent with the allocations made pursuant to this Section 1.06 and shall not take any position inconsistent therewith.

      Section 1.07  

    Restrictions on Shares .  

 

                            (a)    For a period of one (1) year from the Closing Date, Seller shall not be permitted to trade, sell, or otherwise transfer any or all of the Shares.

                            (b)  After the one (1) year anniversary of the Closing Date, Seller shall be permitted to trade, sell, or otherwise transfer the Shares, subject to the following restrictions:

                                                        (i) The maximum number of Shares that may be sold per day on the public market shall not exceed twenty percent (20%) of the daily average trading volume for the previous ten (10) trading days; and

                                                        (ii) The maximum number of Shares that may be sold per day in private transactions shall not exceed two hundred thousand (200,000) Shares.

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                            (c)  If and when Seller decides to sell the Shares on the public market, Seller shall, in its sole discretion, consider using Noble International Investments, Inc. (“ Noble ”) to execute such sell orders; provided, that Seller shall have no obligation to consult with Noble prior to selling Shares on the public market or engage Noble to execute the trade orders for such public market sales.

                            (d) The restrictions in this Section 1.07 shall not apply to (i) any transfer of the Shares by operation of law, such as bankruptcy, or (ii) any transfer of Shares to Buyer pursuant to Article VII .

      Section 1.08     Determination of Share Price . The number of Shares (rounded to the nearest whole Share) to be issued to Seller pursuant to Section 1.05 hereof shall be equal to (a) One Million Five Hundred Thousand Dollars ($1,500,000) divided by (b) the average closing market price of Global Med common stock (symbol GLOB.OB) for the previous ten (10) trading days prior to the Closing Date.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF SELLER

      As an inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated herein, Seller represents and warrants to Buyer that, as of the date of this Agreement:

      Section 2.01     Existence, Good Standing and Power . Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Virginia, and has all organizational power and all governmental licenses, authorizations, consents, approvals and qualifications required to carry on its business as now conducted and to own and operate its assets as now owned and operated, except where, in the aggregate, the failure to have such licenses, authorizations, consents, approvals and qualifications would not have a Seller Material Adverse Effect.

      Section 2.02     Authorization and Enforceability . Seller has the full right, power and authority to enter into this Agreement and all other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby, including the transfer, conveyance and sale of the Transferred Assets to Buyer. This Agreement has been duly and validly executed and delivered by Seller and constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with the terms of this Agreement, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity.

      Section 2.03     Non-Contravention . The execution, delivery and performance by Seller of this Agreement and all other Transaction Documents to which it is a party does not and will not (a) contravene or conflict with the articles of organization or operating agreement of Seller, (b) contravene or conflict with or constitute a violation of any provision of any Applicable Law binding upon or applicable to Seller, the Business or the Transferred Assets, (c) assuming the receipt of all of the Contract consents set forth in Schedule 2.04 , constitute a default under or give rise to any right of termination, cancellation or acceleration of, any material Contract or any permit or similar authorization relating to Seller or the Transferred Assets by which Seller or the Transferred Assets may be bound, or (d) result in the creation or imposition of any Lien on any Transferred Assets. This Agreement, the other Transaction Documents, and the transactions contemplated hereby and thereby have been approved by the Members of the Seller.

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       Section 2.04    Required Approvals and Consents . Schedule 2.04 lists each Contract to be assigned to Buyer and denotes those contracts for which the consent of the other party or parties thereto must be obtained by Seller by virtue of the execution and delivery of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby to avoid the invalidity of such Contract, the termination thereof, a breach or default thereunder or any other change or modification to the terms thereof including the assignment thereof to Buyer.

        Section 2.05    Undisclosed Liabilities . There are no Liabilities relating to the Transferred Assets except for those Liabilities set forth on Schedules 1.03 and 2.15 .

       Section 2.06    Absence of Certain Changes . Since January 31, 2008, the Business has been conducted in the ordinary course and there has not been, except as set forth on Schedule 2.06 :

                              (a) any event, occurrence, development or state of circumstances or facts or change in Seller affecting Seller or the Business that has had or that may be reasonably expected to have, either alone or together with all such events, occurrences, developments, states of circumstances or facts or changes, a Seller Material Adverse Effect;

                              (b)  any creation, assumption or sufferance of the existence of any Lien on any of the Transferred Assets; or

                              (c)  any material transaction or commitment made, or any material Contract entered into, by Seller, or any waiver, amendment, termination or cancellation of any material Contract by Seller, or any relinquishment of any rights thereunder by Seller, or of any other material right or debt owed to Seller, other than in each such case actions taken in the ordinary course of business consistent with past practice.

      Section 2.07    Tangible Assets .

                              (a) Seller does not own any real property. Schedule 2.07(a) sets forth a true and complete list of all personal property leases (i) to which Seller is a party or by which Seller is bound and (ii) are to be assumed by Buyer pursuant to the terms hereof or otherwise renegotiated by Buyer (the “ Personal Property Leases ”).

                              (b) With respect to the Personal Property Leases, there exist no defaults by Seller or any default or, to the Knowledge of Seller, threatened default by any lessor or third party thereunder, that has materially affected or could reasonably be expected to materially affect the rights and privileges thereunder of Seller. The consummation of the transactions contemplated hereby will not result in a breach of, or give any Person the right to terminate, any Personal Property Lease or result in any material adverse change in the terms of any Personal Property Lease.

                              (c) Seller has a good and valid leasehold interest in the personal property subject to the Personal Property Leases, and good and valid title to its Transferred Assets. Seller holds title to each Transferred Asset free and clear of all Liens, except for (i) Liens set forth on Schedule 2.07(c) , (ii) Liens for current taxes not yet due and payable, and (iii) such imperfections of title, easements, pledges, charges and encumbrances, if any, that do not, in the aggregate, have a Seller Material Adverse Effect (collectively, the “ Permitted Liens ”); provided, that this sentence shall not apply to any intellectual property used by Seller in connection with the Business.

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                              (d) Seller has not received written notice of, and, to the Knowledge of Seller, is not aware of, any pending zoning or other land-use regulation proceedings or any proposed change in any Applicable Laws that could reasonably be expected to detrimentally affect the use or operation of the Business.

                              (e)  The Transferred Assets shall be in operating condition on the Closing Date, subject to normal wear and tear.

                              (f)  The Transferred Assets constitute all of the assets Seller required to operate the Business as conducted by it prior to the date hereof.

      Section 2.08    Affiliates . Except as set forth on Schedule 2.08 , neither Seller nor any officers or directors of Seller (or any immediate family member of any such officer or director) now has or at any time had, either directly or indirectly, an equity or debt interest in any Person (other than shares in a public company) that furnishes or sells or during such period furnished or sold services or products to Seller or purchases or during such period purchased from Seller any goods or services, or otherwise does or during such period did business with Seller.

      Section 2.09    Litigation . There are no actions, suits, hearings, arbitrations, proceedings (public or private) or governmental investigations that have been brought by or against any Governmental Authority or any other Person (collectively, “ Proceedings ”) pending or, to the Knowledge of Seller, threatened against or affecting Seller, the Business or the Transferred Assets or which seek to enjoin or rescind the transactions contemplated by this Agreement or otherwise prevent Seller from complying with the terms and provisions of this Agreement. There are no existing orders, judgments or decrees of any Governmental Authority affecting any of Seller, the Business or the Transferred Assets.

      Section 2.10    Compliance with Applicable Laws . The operation of the Business has not violatedor infringed, and does not violate or infringe, any material Applicable Law.

     Section 2.11    Intellectual Property .

                              (a)   Schedule 2.11 sets forth a complete and correct list of each patent, pending patent application, trademark, trade name, or registrations or pending applications thereof, copyright or copyright registration or application for copyright registration, and each license or licensing agreement for any of the foregoing of the Seller (collectively, the “ Intellectual Property Rights ”).

                              (b)  Seller has not been a party to any Proceeding nor is any Proceeding threatened in writing that involved or may involve a claim of infringement by any Person (including any Governmental Authority) of any Intellectual Property Right. No Intellectual Property Right is subject to any outstanding order, judgment, decree, stipulation or agreement restricting the use thereof by Seller, or restricting the licensing thereof by Seller to any Person. The use of the Intellectual Property Rights and the conduct of the Business do not conflict with, infringe upon or violate any patent, patent license, patent application, trademark, tradename, trademark or tradename registration, copyright, copyright registration, service mark, brand mark or brand name or any pending application relating thereto, or any trade secret or any other intellectual property, of any Person conducting business in the United States.

6


                              (c) Seller either owns the entire right, title and interest in, to and under, or has acquired in connection with the acquisition of Equipment or Inventory an implied or express license to use, any and all inventions, processes, computer programs, know-how, formulae, trade secrets, patents, chip designs, mask works, trademarks, tradenames, brand names and copyrights that are necessary for the conduct of the Business in the manner that the Business has heretofore been conducted. No other inventions, processes, computer programs, know-how, formulae, trade secrets, patents, chip designs, mask works, trademarks, tradenames, brand names, copyrights, licenses or applications for any of the foregoing are necessary for the unimpaired continued operation of the Business in the manner that the Business has heretofore been conducted.

       Section 2.12    Insurance .

                              (a) Schedule 2.12 sets forth a complete and correct list of all material insurance policies of any kind currently in force with respect to Seller or the Transferred Assets (collectively, the “ Insurance Policies ”). Schedule 2.12 sets forth for each Insurance Policy the type of coverage, the name of the insureds, the insurer, the premium, the expiration date, the period to which it relates, the deductibles and loss retention amounts and the amounts of coverage. No cancellation or material amendment or increase of premiums is pending or, to the Knowledge of Seller, threatened with respect to any of the Insurance Policies.

                              (b) No insurance company that issued any Insurance Policy, Board of Fire Underwriters or similar body, or Governmental Authority has issued a written recommendation or requirement for any material changes in the conduct of the Business or any repairs or other work to be done on or with respect to any material amount of Transferred Assets.

       Section 2.13    Tax Matters .

                              (a) Except as has been disclosed in Schedule 2.13 , all Tax Returns related to the Transferred Assets required to be filed by Seller have been timely filed and all such returns are true and correct in all material respects;

                              (b) There are no Taxes of Seller or deficiencies in Taxes or claims for Taxes against Seller, related to the Transferred Assets, for any taxable period prior to the Closing that could become a liability of, or which could be assessed against or collected from, Buyer after the Closing Date (including any Taxes relating to Buyer’s purchase of the Transferred Assets); and

                              (c) There are no Liens against any of the Transferred Assets for Taxes other than Liens for Taxes not yet due and payable.

      Section 2.14    Advisory Fees . There is no investment banker, broker, finder or other intermediary or advisor that has been retained by or is authorized to act on behalf of Seller, who might be entitled to any fee, commission or reimbursement of expenses from Buyer upon consummation of the transactions contemplated by this Agreement.

      Section 2.15   Material Disclosures . Except as set forth on Schedule 2.15 , no statement, representation or warranty made by Seller in this Agreement or in any certificate, statement, list, schedule or other document furnished or to be furnished to Buyer hereunder contains, or when so furnished will contain, any untrue statement of a material fact, or fails to state, or when so furnished will fail to state, a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they are made, not misleading.

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      Section 2.16 Seller’s Advisors . TO THE EXTENT THAT SELLER HAS DEEMED IT APPROPRIATE TO DO SO, SELLER HAS RETAINED, AND RELIED UPON, APPROPRIATE PROFESSIONAL ADVICE REGARDING THE TAX, ACCOUNTING, LEGAL, INVESTMENT AND FINANCIAL MERITS AND CONSEQUENCES OF AN INVESTMENT IN THE SHARES. SELLER ACKNOWLEDGES THAT THE LAW FIRM OF KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP HAS SOLELY REPRESENTED BUYER IN CONNECTION WITH THIS TRANSACTION AND ACCORDINGLY SELLER HAS RELIED SOLELY ON THE PROFESSIONAL ADVICE OF ITS OWN COUNSEL WITH RESPECT TO THE TRANSACTION SET FORTH HEREIN.

      Section 2.17 Seller’s Access to Global Med’s Documents and Independent Review and Decision . IN PURCHASING THE SHARES, SELLER HAS RELIED UPON THE RESULTS OF ITS OWN INDEPENDENT REVIEW OF THE INFORMATION PROVIDED BY BUYER UPON THE REQUEST OF SELLER AND THE INFORMATION FILED BY BUYER WITH THE SECURITIES AND EXCHANGE COMMISSION. SELLER HAS BEEN PROVIDED ACCESS TO ANY AND ALL DOCUMENTS AND/OR OTHER INFORMATION DEEMED NECESSARY BY SELLER AND ITS ADVISORS, INCLUDING TAX AND LEGAL ADVISORS, TO THE EXTENT SUCH DOCUMENTS OR INFORMATION WERE RELEVANT TO THIS TRANSACTION AND WERE POSSESSED OR OBTAINABLE BY GLOBAL MED WITHOUT UNREASONABLE EFFORT OR EXPENSE, IN ORDER TO MAKE AN INDEPENDENT, WELL-INFORMED INVESTMENT DECISION REGARDING GLOBAL MED AND THE SHARES. SELLER AND ITS ADVISORS, INCLUDING TAX AND LEGAL ADVISORS, HAVE HAD AN OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM A PERSON, OR PERSONS ACTING ON GLOBAL MED’S BEHALF, CONCERNING THE TERMS AND CONDITIONS OF THE INVESTMENT CONTEMPLATED HEREBY. ALL SUCH QUESTIONS HAVE BEEN ANSWERED TO THE SELLER’S FULL SATISFACTION.

      Section 2.18  Seller’s Purpose . Seller (a) is acquiring the Shares for its own account, for investment only, and not with a view toward the resale or distribution thereof; (b) has, alone or together with Seller’s advisors, substantial knowledge and experience in business and financial matters, including the business operated by Global Med, which enables Seller to evaluate the merits and risks of making investment decisions of the type contemplated hereby; (c) has the ability to bear the economic risk of this investment and the ability, at the present time, to afford a complete loss of such investment; and (d) has adequate means of providing for its current needs and possible business contingencies, without a need for liquidity of this investment.

      Section 2.19   Seller’s Risk of Investment . Seller is aware that the Shares are a speculative investment with no assurance that Global Med will be successful or, if successful, that such success will result in payments to Seller or realization of gain by the Seller’s disposition, if any. Seller understands that an investment in Global Med represents a high degree of risk and is suitable only for those persons having a substantial net worth, and who can afford to bear such risk. Seller has carefully considered the risk factors and tax consequences attendant to the purchase of Shares and has consulted with its own legal, tax and financial advisors with respect thereto. Seller has read and understood all of the information provided to Seller at its request by the Buyer and accepts the same knowingly and willingly.

      Section 2.20   Legend .   All certificates representing the Shares shall bear  legends stating in substance:

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THESE SECURITIES HAVE NOT BEEN REGISTERED UNDERTHE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATEDIN THE ABSENCE OF A REGISTRATION STATEMENT IN
 EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION
THAT SUCH REGISTRATION IS NOT REQUIRED, OR UNLESS OLD PURSUANT TO AN AVAILABLE
EXEMPTION FROM
REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF BUYER

      As an inducement to Seller to enter into this Agreement and to consummate the transactions contemplated herein, Buyer represents and warrants to Seller that, as of the date of this Agreement:

      Section 3.01  Organization and Existence . Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Colorado and has all power and all governmental licenses, authorizations, consents, approvals and qualifications required to carry on its business as now conducted and to own and operate its assets as now owned and operated except where, in the aggregate, the failure to have such licenses, authorizations, consents, approvals and qualifications would not have a Buyer Material Adverse Effect.

      Section 3.02   Authorization and Enforceability . Buyer has full right, power and authority to enter into this Agreement and all other Transaction Documents to which it is a party, and to consummate the transactions contemplated hereby and thereby. This Agreement and all other Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer and constitute the legal, valid and binding agreement of Buyer enforceable against it in accordance with the terms of this Agreement, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity.

      Section 3.03   Required Approvals and Consents . There are no governmental or other registrations, filings, applications, notices, transfers, consents, approvals, orders, qualifications or waivers required to be obtained or made by Buyer by virtue of its execution and delivery of this Agreement or the other Transaction Documents or its consummation of the transactions contemplated hereby or thereby.

      Section 3.04   Non-Contravention . The execution, delivery and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party does not and will not (a) contravene or conflict with the Articles of Incorporation or Bylaws of Buyer, (b) contravene or conflict with or constitute a violation of any provision of any Applicable Law binding upon or applicable to Buyer, its businesses or its assets, (c) constitute a default under or give rise to any right of termination, cancellation or acceleration of, any material Contract or any permit or similar authorization relating to Buyer or its assets by which Buyer or its assets may be bound, or (d) result in the creation or imposition of any Lien on any of Buyer’s assets. This Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby have been approved by the Board of Directors of Buyer.

9


      Section 3.05    Advisory Fees There is no investment banker, broker, finder or other intermediary or advisor that has been retained by or is authorized to act on behalf of Buyer who might be entitled to any fee, commission or reimbursement of expenses from Seller or the Members upon consummation of the transactions contemplated by this Agreement.

       Section 3.06    No Liabilities Documents, Buyer has no Liabilities. Other than the Liabilities contemplated by the Transaction

      Section 3.07   Litigation . There are no Proceedings pending or threatened in writing against Buyer, or its businesses or its assets or which seek to enjoin or rescind the transactions contemplated by this Agreement or otherwise prevent Buyer from complying with the terms and provisions of this Agreement. There are no existing orders, judgments or decrees of any Governmental Authority affecting any of Buyer or its respective businesses or its assets.

      Section 3.08  Capitalization . The authorized capital of Buyer is set forth in the Buyer’s Form 10-K as filed with the Securities and Exchange Commission (“ SEC ”). Except as set forth in Buyer’s filings with the SEC, there are no options, rights, warrants, calls or other outstanding securities convertible into or exercisable or


 
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