Exhibit 2.1(a)
Pursuant to 17 C.F.R. §
240.24b-2, confidential information (indicated by [***]) has been
omitted and has been filed separately with the Securities and
Exchange Commission pursuant to a Confidential Treatment
Application filed with the Commission.
DATED 20th FEBRUARY
2009
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Integral Systems,
Inc.
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(1)
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and
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QinetiQ Limited
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(2)
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ASSET SALE
AGREEMENT
CONTENTS
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Heading
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Page
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1
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Definitions and
Interpretation
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2
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2
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Sale of the
Stock and Other Assets
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5
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3
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Completion and
Calculation of Stock Price
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6
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4
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Assumed
Liabilities
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8
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5
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Excluded
Liabilities
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8
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6
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Value Added
Tax
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8
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7
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Contracts
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9
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8
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Employees
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11
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9
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Post-Completion
Matters
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11
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10
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Warranties
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11
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11
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Confidentiality
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12
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12
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Successors,
Assigns and Third Party Rights
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13
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13
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Preservation of
Rights
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13
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14
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Severability
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13
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15
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Entire
Agreement
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14
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16
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Notices
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14
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17
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Applicable Law
and Submission to Jurisdiction
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15
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18
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Counterparts
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15
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19
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Delivery of
Agreement
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15
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Schedule
1
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16
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Schedule
2
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25
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Schedule
3
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25
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Schedule
4
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25
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Schedule
5
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25
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THIS AGREEMENT is made on 20th February 2009
BETWEEN :
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(1)
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Integral
Systems, Inc. incorporated in the State of Maryland having its
principal place of business at 5000 Philadelphia Way, Lanham,
Maryland 20706-4417, USA (the “ Buyer ”);
and
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(2)
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QinetiQ
Limited registered in
England & Wales number 03796233 having its registered
office at 85 Buckingham Gate, London, SW1E 6PD (the “
Seller ”).
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INTRODUCTION
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1
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The Seller
currently sells the Products and supplies the Services and owns
certain Stock and Moveable Equipment in relation to such sales and
supplies which it has agreed to sell to the Buyer.
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2
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The Buyer
wishes to sell the Products and Services as its own.
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3
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The Seller and
QinetiQ Inc. have entered into the Contracts in connection with
selling the Products and supplying the Services, and the Seller
proposes to transfer or cause the transfer of the Contracts to the
Buyer in connection with the Buyer’s purchase of the Stock
and Moveable Equipment.
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IT IS AGREED
as follows:
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1
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Definitions and
Interpretation
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“ Agreed Documents
” means this Agreement and all the Agreed Form documents,
each of which is listed in Schedule 5;
“ Agreed Form ”
means a form which has been agreed to by the parties and which has
been duly executed or initialled for identification by them or on
their behalf;
“ Applicable Law
” means all applicable laws and regulations for the time
being in force in any jurisdiction with which the Seller must
abide;
“ Assets ” means
the Stock, the Moveable Equipment and the benefit of the
Contracts;
“ Assumed Liabilities
” means the Liabilities set out in Schedule 3;
“Bid”
means any outstanding quotation, bid
or proposal of the Seller or QinetiQ Inc. which, if accepted or
awarded, would lead to any contract with any agency of the United
States Government or any foreign government, and any subcontract
under such contract, in each case relating to any of the Products
or Services;
“ Business Day ”
means any day other than a Saturday, Sunday or public holiday in
England and Wales or the State of Maryland, United States of
America;
“ Buyer’s Group
” means the Buyer, its ultimate parent undertaking from time
to time and any subsidiary undertaking of the Buyer’s
ultimate parent undertaking from time to time;
“ Completion ”
means completion of this Agreement, including the consummation of
the transactions contemplated hereby to be consummated on the
Completion Date;
“ Completion Date
” means the date of this Agreement;
“ Confidential
Information ” means this Agreement, the negotiations
relating to this Agreement and all information not generally known
or of a confidential nature (including, without limitation, that
contained in or associated with the Contracts, the Stock, the
Moveable Equipment, the Products and/or the Services and the manner
in which they are used/combined);
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“ Contracts ”
means the Customer Contracts and the Supply Contracts;
“Contracts
Act” means the
Contracts (Rights of Third Parties) Act 1999;
“ Customer Contracts
” means the contracts listed in part 2 of Schedule 2 and the
Government Contracts;
“ Data Room ”
means the online data room made available to the Buyer on
9 December 2008, in the form and containing the materials in
such data room as of 16 February 2009 as set forth in the CD
delivered by the Seller to the Buyer on the Completion
Date;
“ Disclosure Letter
” means the Agreed Form letter of the same date as this
Agreement from the Seller Parties to the Buyer disclosing certain
matters in relation to the Warranties which has been delivered to
the Buyer concurrently with the execution of this Agreement
(receipt of which has been acknowledged by the Buyer);
“ Encumbrance ”
means any bill of sale, option, trust, power of sale, title
retention, pre-emption right, right of first refusal, Security
Interest or other right, claim or interest, whether legal or
equitable, of any third party (or an agreement or commitment to
create any of them);
“Excluded
Liabilities” means
all liabilities or obligations of either the Seller or QinetiQ Inc.
whatsoever other than the Assumed Liabilities, whether direct or
indirect, known or unknown, absolute or contingent, matured or
unmatured, and currently existing or hereinafter arising,
including, without limitation (i) Tax and all Tax creditors of
the Seller or QinetiQ Inc.; (ii) any and all liabilities
arising by reason of the Seller’s or QinetiQ Inc.’s
failure to observe or perform the terms of any of the Contracts
prior to the Transfer Time; and (iii) any and all liabilities
by reason of the Products, Services or Assets which are
attributable to the period up to and including the Transfer Time,
including any defects in goods supplied or services provided prior
to the Transfer Time;
“ fairly disclosed
” means disclosed with such sufficient explanation and detail
as to enable a reasonable buyer to make an informed assessment of
the matter concerned;
“GBP”
means pounds sterling;
“Government
Contract” means
those Customer Contracts listed in part 4 of Schedule 2;
“Government Furnished
Items” means any
material personal property, equipment and fixtures loaned, bailed
or otherwise furnished to either the Seller or QinetiQ Inc. by or
on behalf of the U.S. Government that relates to the supply of the
Services or the sale of the Products by the Seller or QinetiQ Inc.
which is being used by the Seller or QinetiQ inc. in the supply of
the Services or the sale of the Products and is or should be in the
possession of the Seller or QinetiQ Inc. for use in the supply of
the Services or the sale of the Products;
“ ICTA 1988 ”
means the Income and Corporation Taxes Act 1988;
“ Liabilities ”
means all debts, obligations and liabilities (whether actual or
contingent) of the Seller or QinetiQ inc. relating to the Products
or Services as at the Transfer Time;
“ [***] Contract
” means the agreement entered into between QinetiQ Inc. and
the [***];
“[***]
Subcontract” means
the agreement entered into between the Seller and QinetiQ Inc. on
21 November 2008;
“ Moveable Equipment
” means all of the plant, machinery and equipment listed in
part 1 of Schedule 2, including the Test Environment
Components;
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“ Nominated Account
” means the Seller’s account with the account name USD
QinetiQ and account number [***] at the City Office, Gillingham
branch of Lloyds TSB Bank sort code [***] (IBAN number [***]) (or
such other account as the Seller shall specify in writing before
Completion to the Buyer for the purposes of this
Agreement);
“ Official Requirement
” means any enactment, ordinance, pact, decree, treaty, code,
directive, order, notice or official published plan or policy with
legal or actual force in any geographical area and/or over any
class of persons;
“Products
” means equipment and software
used to determine the geographical position of satellite
transmitters manufactured, sold or developed by the Seller (or its
predecessor) in connection with its ‘satID’ business or
any predecessor business;
“ Purchase Price
” means $50,000 USD;
“QinetiQ
Inc” means QinetiQ
Inc. incorporated in the State of Delaware having its principal
place of business at 2345 Crystal Drive, Suite 909, Four Crystal
Park, Arlington, VA 22202, USA;
“Regulations”
means the Transfer of Undertakings
(Protection of Employment) Regulations 2006 or any similar
legislation in any other jurisdiction;
“ Relevant Authority
” means any person or authority with legal or de facto power
to impose and/or enforce compliance with any Official
Requirement;
“ Relevant Breach
” means a breach of any of the Warranties;
“ Security Interest
” means a mortgage, lien, pledge, charge (fixed or floating),
assignment by way of security, hypothecation or other security
interest (or an agreement or commitment to create any of
them);
“Seller’s
Group” means the
Seller, its ultimate parent undertaking from time to time and any
subsidiary undertaking of the Seller’s ultimate parent
undertaking from time to time, including QinetiQ North America
Operations LLC and its subsidiary undertakings;
“Seller’s Limitations
Agreement” means
the Agreed Form agreement containing limitations on the
Seller’s liability under this Agreement entered into between
the Seller and the Buyer on the date of this Agreement;
“ Services ”
means any services provided to customers using Products;
“Stock”
means all stocks, work-in-progress,
finished and partly finished goods held by the Seller as at the
Transfer Time and for the sole purpose of manufacturing the
Products as set out at reference 2.10.1 of the Data
Room;
“ Stock Deposit ”
means $311,000 USD (being 50% of the estimated Stock
Price);
“ Stock Price ”
means the price attributable to the Stock as agreed or determined
in accordance with clause 3;
“ Supply Contracts
” means the contracts listed in part 3 of Schedule
2;
“ Tax ” means all
forms of taxes duties imposts and levies and all deductions and
withholdings in relation to tax whenever created or imposed and
whether of the United Kingdom or elsewhere including (without
limitation) deductions under the Pay As You Earn system, National
Insurance contributions and VAT;
“Test Environment
Components” means
the components specified in part 1 of Schedule 2 to be used by the
Buyer to construct a test environment system;
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“ Third Party Consent
” means a consent, license, approval, authorization or waiver
required from a third party for the conveyance, transfer,
assignment or novation in favor of the Buyer of any of the
Contracts, other Assets or Assumed Liabilities in terms reasonably
acceptable to the Buyer;
“ Transfer Time ”
means 5pm (London time) on the Completion Date;
“USD”
means United States
Dollars;
“ VAT ” means
value added tax; and
“ Warranties ”
means each of the statements contained in Schedule 1.
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(a)
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a “
subsidiary undertaking ” or “ parent
undertaking ” is to be construed in accordance with
section 1162 (and Schedule 7) Companies Act 2006 and a reference to
a “ holding company ” or a “
subsidiary ” is to be construed in accordance with
section 1159 (and Schedule 6) of the Companies Act 2006 provided
that, in each case, the definition of “ company
” shall be a body corporate incorporated in any
jurisdiction;
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(b)
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the words and
phrases “ other ”, “ including
” and “ in particular ” shall not limit
the generality of any preceding words or be construed as being
limited to the same class as the preceding words where a wider
construction is possible;
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(c)
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a person is
connected with another person if he is so connected within the
meaning of section 839 ICTA 1988;
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(d)
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a reference to
any enactment shall include a reference to that enactment as
re-enacted, replaced or modified from time to time before the
Completion Date; and
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(e)
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references to
“reasonable times” for access to any premises, records
or other item mean by prior appointment, during normal working
hours on a Business Day.
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1.3
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The headings in
this Agreement shall be ignored in interpreting this
Agreement.
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1.4
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Any reference
to this Agreement shall include the Schedules to this Agreement and
any attachments to it which shall have the same force and effect as
if contained in the body of this Agreement.
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1.5
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Where either
party gives an indemnity in favour of the other party in respect of
liabilities, the obligation of the indemnifying party shall be to
indemnify the other party against all fines, penalties, costs,
losses, damages and expenses (including legal costs on an indemnity
costs basis and other professional expenses reasonably
incurred).
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1.6
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Where either
party gives an indemnity in favour of the other party the
obligation of the indemnifying party shall be to make the relevant
payment forthwith in full and on demand (but subject to any right
of set-off, counterclaim or deduction that the indemnifying party
may have against the indemnitee).
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2
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Sale of
the Stock and Other Assets
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2.1
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The Seller
shall sell, assign, transfer and deliver with full title guarantee
and the Buyer (relying, as the Seller acknowledges, on the
warranties, undertakings, covenants and indemnities of the Seller
contained in the Agreed Documents) agrees to buy the Assets free
from Encumbrances with effect from Completion save in respect of
Stock attributable to the [***] Contract which shall be bought on
delivery to the Buyer. Notwithstanding the foregoing, assignment
and transfer of the Contracts shall be governed by clause
7.
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2.2
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Title to,
beneficial ownership of, and any risk attaching to, the Assets
shall pass to the Buyer on Completion except that title to and
beneficial ownership of the Contracts shall pass to the Buyer as
provided in clause 7 and title to and beneficial ownership of the
Stock attributable to the [***] Contract shall pass to the Buyer on
delivery.
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2.3
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The
consideration for the sale of the Assets shall be:
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(a)
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the payment on
Completion by the Buyer to the Seller of the Purchase Price in
USD;
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(b)
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the payment on
Completion by the Buyer to the Seller of the Stock Deposit on
account of the Stock Price in USD;
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(c)
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the payment by
the Buyer to the Seller of the balance of the Stock Price in
accordance with clause 3 below in USD; and
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(d)
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the assumption
by the Buyer of the Assumed Liabilities.
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2.4
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For the
avoidance of doubt, the following shall be excluded from the sale
under this Agreement:
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(a)
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the Excluded
Liabilities; and
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(b)
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any Tax for
which the Seller is liable.
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3
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Completion and Calculation of Stock
Price
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(a)
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the Seller
shall deliver the Moveable Equipment and the relevant place of
delivery in respect of each item of Moveable Equipment shall be at
the location specified in Schedule 2;
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(b)
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the Seller
shall deliver the Stock and the place of delivery for the Stock
shall be at [***], [***], [***] USA unless an alternative location
is specified in the Agreed Form appendix attached to this
Agreement, save that the Stock attributable to the [***] Contract
shall be delivered to [***], [***], [***] USA after Completion at a
date to be agreed between the Seller and the Buyer;
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(c)
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the Buyer shall
pay the Purchase Price and the Stock Deposit to the Seller by
electronic funds transfer to the Nominated Account (and any payment
into the Nominated Account shall constitute good discharge of the
Buyer’s obligations to the Seller in respect of that
payment); and
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(d)
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the Seller
shall pre-pay a five month rental (commencing 1 February 2009)
of the antennae facility used by it at [***], [***] for its satID
business.
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3.2
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The Buyer shall
pay any balance of the Stock Price to the Seller by electronic
funds transfer to the Nominated Account within 5 Business Days
after the date of its final agreement or determination in
accordance with clauses 3.3 to 3.6 below.
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Calculation of Stock
Price
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3.3
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The Seller and
the Buyer shall make arrangements as soon as practicable after the
Completion Date, and, in any event, within five Business Days after
the Completion Date, to conduct a full inventory of the
Stock.
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3.4
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All Stock shall be valued in GBP
at the purchase cost of the raw materials to the Seller and the
Stock Price shall be determined in GBP accordingly. For the
purposes of converting the
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GBP valuation of the Stock into
USD, the exchange rate to be used to calculate the payment shall be
the spot rate for the relevant currency quoted by Lloyds TSB Bank
plc at 5.00 p.m. on the Business Day preceding the due date for
payment of the Stock Price.
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3.5
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If there shall
be any disagreement between the parties as to any matter to be
determined under clauses 3.3 and 3.4 or if the Stock Price is not
agreed within 15 Business Days after the Completion Date, the
matters in dispute shall be referred to an Independent Accountant
in accordance with clauses 3.7 to 3.9.
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3.6
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Following any
determination by an Independent Accountant (defined at clause 3.9)
in accordance with clause 3.9, the determination of the Stock
Price by the Independent Accountant shall be the Stock Price and
the date of determination by the Independent Accountant shall be
the date of determination of the Stock Price.
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Dispute Resolution
Procedure
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3.7
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Subject to
clause 3.8, if the parties are unable to agree the matters set out
in clauses 3.3 and 3.4 then they shall use all reasonable
endeavours to agree within a further ten Business Days (the “
Instruction Period ”):
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(a)
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a comprehensive
list specifying in reasonable detail all those matters in dispute
between them;
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(b)
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terms of
reference for an Independent Accountant to determine each disputed
matter; and
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(c)
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which
Independent Accountant is to be instructed to determine the
disputed matters.
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3.8
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As soon as all
the matters referred to in clause 3.7 are agreed, the relevant
disputed matter(s) (but no other matters) shall immediately be
referred to the agreed Independent Accountant on the agreed terms
of reference.
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3.9
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In the absence
of agreement on any of the matters referred to in clause 3.7 within
the Instruction Period, each matter remaining in dispute shall be
resolved by the agreed independent firm, or (in the absence of
agreement within that period on an independent firm) by an
Independent Accountant nominated by the President for the time
being of the Institute of Chartered Accountants in England and
Wales (or any person for the time being performing the functions of
that official) on the application of the Seller or the Buyer (the
“ Independent Accountant ”) on the following
basis:
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(a)
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the Independent
Accountant shall be instructed to notify the parties of their
determination of any such matter within 30 days of that referral,
that determination to be made strictly in accordance with this
clause 3;
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(b)
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the parties
shall be entitled to make written submissions to the Independent
Accountant, but subject to those rights the Independent Accountant
shall have power to determine the procedure to be followed in
relation to their determination;
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(c)
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in making any
such submissions the parties shall state their respective best
estimates of any monetary amounts referred for
determination;
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(d)
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in making their
determination the Independent Accountant shall act as expert and
not as arbitrator, their decision as to any matter referred to them
for determination shall be final and binding in all respects on the
parties and shall not be subject to question on any ground
whatsoever;
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(e)
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the Independent
Accountant may instruct counsel or any other Independent Accountant
to determine any matter outside the scope of their own expertise
and the costs of so doing shall be borne as stated in clause
3.9(f); and
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(f)
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the fees and
expenses of the Independent Accountant (including any costs
referred to in clause 3.9(e) shall be borne and paid as the
Independent Accountant shall direct (or, in the absence of any such
direction, as to half by the Seller and as to half by the
Buyer).
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3.10
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Until the
matters to be determined by the Independent Accountant have been
determined the parties shall respectively:
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(a)
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give or insure
that the Independent Accountant is given access at all reasonable
times to the Stocks and all relevant books and records;
and
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(b)
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generally
provide the Independent Accountant with such other information and
assistance as they may reasonably require (including access to and
assistance at reasonable times from personnel employed by the
Seller or the Buyer, as the required), in relation to the
determination of the matters referred to them.
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4.1
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The Buyer
undertakes to the Seller that it shall discharge the Assumed
Liabilities and to indemnify the Seller against all liabilities
incurred by the Seller in relation to any of them.
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5.1
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Notwithstanding
any other provision of this Agreement to the contrary or any
disclosure to the Buyer, the Buyer is not assuming (and the Seller
and QinetiQ Inc. shall retain without recourse to the Buyer) any
and all Excluded Liabilities, and the Seller shall indemnify the
Buyer against all liabilities incurred by the Buyer in relation to
any of them subject to the remaining provisions of this clause 5.
Without limiting the foregoing (subject to the remaining provisions
of this clause 5), the Seller shall indemnify the Buyer for and all
Taxes (including interest, deductions and penalties with respect
thereto) imposed on the Buyer in connection with the Assets or for
which the Buyer is liable, with respect to all periods ending on or
before Completion and any costs or expenses with respect to tax
indemnification arising hereunder.
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5.2
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The Buyer shall
inform the Seller in writing of any claim by any third party
(“ Third Party Claim”) in respect of an Excluded
Liability which becomes to the notice of the Buyer as soon as
reasonably practicable but in any event within fourteen
(14) days from the day on which such Third Party Claim comes
to the notice of the Buyer. Failure to give notice shall not
release the Seller from its obligations under this clause 5 save to
the extent its liability is increased thereby.
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5.3
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The Buyer
shall, at the expense of the Seller, take such action and give such
information and assistance as the Seller may reasonably request in
writing to avoid, dispute, resist, mitigate, compromise or defend
any Third Party Claim and to appeal against any judgment given in
respect thereof including (without limitation) applying to postpone
so far as legally possible the payment of any taxation.
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5.4
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On the written
request of the Seller, the sole conduct of any legal proceedings of
whatsoever nature arising out of any Third Party Claim (“
Proceedings”) shall be delegated to the Seller. For
this purpose, the Buyer shall, at the expense of the Seller, give
or procure to be given to the Seller all such assistance as the
Seller may reasonably require and shall appoint such solicitors and
other professional advisers as the Seller may nominate (approved by
the Buyer such approval not to be unreasonably withheld or delayed)
to act of behalf of the Buyer in accordance with the Seller’s
instructions.
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6.1
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The consideration under this
Agreement is stated to be exclusive of any VAT which maybe payable.
The Seller shall not charge VAT as at Completion but reserves the
right subsequently to submit a VAT invoice should the relevant
authorities determine that VAT
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8
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shall be chargeable under this
Agreement and on receipt of any such VAT invoice and
notwithstanding its prior payment of the consideration the Buyer
shall pay to the Nominated Account the amount of such
VAT.
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7.1
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The Contracts
shall be dealt with as follows:
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(a)
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Subject to
clauses 7.1(b) and (c), the Seller hereby assigns and transfers to
the Buyer and shall cause QinetiQ Inc. to assign and transfer to
the Buyer all of their respective right, title and interest in, to
and under the Contracts including the benefit of any unpaid
invoices issued thereunder (as detailed in Schedule 4), in each
case with effect from the Transfer Time.
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(b)
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Notwithstanding
clause 7.1(a), insofar as any of the Contracts cannot be assigned
or novated to the Buyer without Third Party Consent, and such
consent is refused or otherwise not obtained prior to the Transfer
Time, or where any of the Contracts are incapable of transfer to
the Buyer by assignment, novation or other means, the assignment of
such Contracts to Buyer pursuant to this clause 7.1 shall not be
effective until such consent is obtained, and the following shall
apply with respect thereto:
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(i)
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the Seller
shall and shall cause QinetiQ Inc. to at the Buyer’s request
use all reasonable endeavours with the co-operation of the Buyer to
insure such assignment or novation as soon as reasonably
practicable;
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(ii)
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unless and
until any such Contract is assigned or novated, the Seller shall
continue its corporate existence and shall itself and shall cause
QinetiQ Inc. to hold such Contract and any monies, goods or other
benefits received thereunder as trustee for the Buyer and its
successors in title absolutely;
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(iii)
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the Buyer shall
(if such sub-contracting is permissible and lawful under the
Contract in question), as the Seller or QinetiQ Inc.’s
sub-contractor, perform all the obligations of the Seller or
QinetiQ Inc. under such Contract and, where sub-contracting is not
permissible, the Buyer shall perform such obligations as agent for
the Seller or QinetiQ Inc. and shall indemnify the Seller and
QinetiQ Inc. from all liabilities arising by reason of the
Buyer’s failure to observe and perform the terms of any such
Contract; and
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(iv)
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unless and
until any such Contract is assigned or novated, the Seller shall
and shall cause QinetiQ Inc. to (so far as they lawfully may) give
all such assistance as the Buyer may reasonably require to enable
the Buyer to enforce its rights under such Contract and (without
limitation) shall provide access to all of their relevant books,
documents and other information in relation to such Contract as the
Buyer may reasonably require from time to time.
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(c)
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Nothing in this
Agreement shall be construed as an assignment or attempted
assignment if such assignment or attempted assignment would
constitute a breach of such Contract.
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(d)
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The Seller and
the Buyer shall each use their reasonable endeavours to novate the
Government Contracts as soon as reasonably practicable following
Completion.
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(e)
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With effect
from assignment or novation the Buyer shall assume the
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