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Date Posted: 05:02:32 02/11/03 Tue
Author: agreement
Subject: agreement6

11 Contracts/Leasing Agreements
11.1 The Purchaser shall after Completion [but subject to the provisions of this clause 11] carry out and perform in accordance with their terms the Contracts and the Leasing Agreements to the extent that the same have not been performed prior to Completion
11.2 The Vendor shall at the Purchaser’s cost and at the request of the Purchaser use its reasonable endeavours to obtain from the other parties to the Contracts and the Leasing Agreements any necessary consent to the substitution of the Purchaser in the place of the Vendor as a party (whether by assignment novation or otherwise) but in any case where such consent is refused or otherwise not readily obtained and until such consent is obtained:
[1312]
11.2.1 the Vendor shall hold the relevant Contract or Leasing Agreement in that party’s name as bare trustee for the Purchaser but the relevant Contract or Leasing Agreement shall be performed by the Purchaser in the name of the Vendor provided that the Vendor shall hold any money goods or other benefits received by it under such Contract or Leasing Agreement as agent of and trustee for the Purchaser and shall as soon as reasonably practicable following receipt of the same account for and pay or deliver to the Purchaser without any deduction or withholding whatever (save as may be required by law or in respect of VAT) all such money goods and other benefits. Any expenses arising in connection with such Contracts shall be paid by the Purchaser
11.2.2 on condition that the Vendor complies with the provisions of clause 11.2.1 the Purchaser undertakes to indemnify and keep indemnified the Vendor from and against any payment required to be made or other liability incurred by or arising against the Vendor in relation to the Contracts or the Leasing Agreements in respect of any period after Completion
[1313]
12 Liabilities
12.1 The Vendor agrees to remain solely responsible for all the liabilities incurred in relation to the Business and outstanding at the Transfer Date (save as otherwise expressly provided in this agreement) and undertakes to discharge such liabilities and to indemnify the Purchaser fully at all times from and against any and all claims actions proceedings demands liabilities costs and expenses in connection with any of such liabilities
12.2 The Vendor shall be responsible for and shall indemnify the Purchaser against any and all claims actions proceedings demands liabilities costs and expenses arising after Completion in respect of any goods manufactured by the Vendor or services supplied by the Vendor prior to the date of Completion which arise as a result of any act omission or default of the Vendor or its employees agents or sub-contractors occurring prior to the date of Completion (whether or not such defective goods were sold to the Purchaser)
[1314]
13 Warranties
The Vendor warrants to the Purchaser in the terms of the Warranties and so that the remedies of the Purchaser in respect of any breach of any of the Warranties shall continue to subsist notwithstanding Completion Provided that the Purchaser shall not be entitled to claim that any fact or combination of facts constitutes a breach of the Warranties if and to the extent that such fact or combination of facts has been fully fairly and clearly disclosed in the Disclosure Letter
[1315]
14 Restrictions on Vendor14
14.1 The Vendor undertakes with the Purchaser that it will not [and that it will procure that [any subsidiary or holding company of the Vendor for the time being] will not] either on its own account or in conjunction with others and whether directly or indirectly:
14.1.1 within (specify area) for a period of (number) years from the Transfer Date [and save as the holder of shares or other securities in a company which are quoted, listed or otherwise dealt in on a recognised stock exchange or other securities market which confer not less than ...% of the votes which could be cast at a general meeting of the company] be engaged concerned interested or employed in any business which supplies goods and/or services which are competitive with or of the type supplied by the Business at the Transfer Date
14.1.2 for a period of (number) years from the Transfer Date solicit canvass or entice away from the Business or the Purchaser the custom of [or otherwise deal or contract with] any person firm or company who was at any time during the period of (number) months immediately preceding the Transfer Date a client or customer of [or supplier to] the Business where the custom relates to goods and/or services which are competitive with or of the type supplied by the Business at any time during the (number) months immediately preceding the Transfer Date
14.1.3 for a period of (number) years from the Transfer Date solicit canvass or entice away any of the Employees [who is employed in a managerial supervisory technical sales or administrative capacity]
14.1.4 at any time after the Transfer Date disclose to any person or use for any purpose any confidential information in respect of the Business
14.1.5 at any time after the Transfer Date carry on business or trade under a name which is identical or similar to any names used by the Business or which suggests any connection with the Business or the Purchaser
[1316]
14.2 Deleted15
14.3 Each covenant contained in clause 14.1 shall be construed as a separate covenant and if one or more of the covenants is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade the remaining covenants shall continue to bind the Vendor
14.4 If any covenant contained in clause 14.1 would be void as drawn but would be valid if some part of the covenant were deleted the covenant in question shall apply with such deletion as may be necessary to make it valid and effective
14.5 The Vendor shall promptly refer to the Purchaser all enquiries relating to the Business and assign to the Purchaser (so far as it is able) all orders relating to the Business which the Vendor may in future receive
[1317]
15 Costs/stamp duty
15.1 The Parties shall pay their own costs in connection with the negotiation preparation and implementation of this agreement or any agreement incidental to or referred to in this agreement
15.2 The Purchaser shall pay any stamp duty payable on this agreement or the transfer and assignments of the Property or other assets sold under this agreement
[1318]
16 Further assurance
The Vendor undertakes with the Purchaser to execute and deliver any other documents and take any other steps as shall be reasonably required by the Purchaser to vest the Assets in the Purchaser
17 Assignment
This agreement is personal to the parties to it and may not be assigned by either party without the prior written consent of the other party
18 Relevant law
This agreement shall be governed by and construed in accordance with the law of England and Wales and the Parties submit to the non-exclusive jurisdiction of the High Court of England and Wales and agree that in the event of any action being begun in respect of this agreement the process by which it is begun may be served on them in accordance with clause 19
[1319]
19 Notices
Any notice required to be given by either party to the other shall be in writing and shall be served by sending the same by pre-paid first class post or by delivering the same by hand to the registered office for the time being of the relevant party and any notice so served shall be deemed to have been served if delivered by hand at the time of such delivery and if sent through the post 48 hours after the time of despatch and in proving service it shall be sufficient to prove in the case of a letter that such letter was properly delivered or stamped addressed and placed in the post (as the case may be)
AS WITNESS etc
[1320]
First schedule
The Employees
(set out particulars)
[second schedule
The Equipment
(set out particulars)]
third schedule
Part I - Contracts
(set out particulars)
[Part II - Leasing Agreements
(set out particulars)]
fourth schedule
The Property
(describe property)
[1321]
fifth schedule
The Warranties
1 VALIDITY OF THIS AGREEMENT
1.1 The Vendor is entitled to enter into this agreement with the Purchaser
1.2 The signature execution and performance of this agreement and all documents ancillary to it by the Vendor has been duly authorised by all necessary acts of the Vendor and its board of directors
2 INFORMATION SUPPLIED TO THE PURCHASER
2.1 The information given in the Disclosure Letter is complete and accurate in all respects and is not misleading because of any omission or ambiguity
2.2 All [written] information supplied to the Purchaser or any of its advisors by or on behalf of the Vendor in the course of the negotiations leading to the execution of this agreement is complete and accurate in all respects and is not misleading because of any omission or ambiguity
2.3 There is no fact or matter concerning the Business known or which ought to be known by the Vendor which has not been disclosed fully and fairly in the Disclosure Letter and which could reasonably be expected to influence the decision or preparedness of the Purchaser to enter into this agreement
[1322]
3 ACCOUNTS AND RECORDS
3.1 The [audited] accounts of the Vendor relating to the Business [for the financial year ended on (date)] comply with the requirements of the Companies Act 1985 and have been prepared in accordance with all applicable Statements of Standard Accounting Practice and (to the extent that none are applicable) with generally accepted accounting principles and practices and show a true and fair view of the assets and liabilities (including contingent unquantified or disputed liabilities) of the Business as at such date and of the results of the Business for the financial period ended on that date
3.2 The accounting and other records of the Business are up to date and contain complete and accurate details of all transactions of the Business
3.3 All means of access to the records and information of the Business will be under the exclusive ownership and direct control of the Purchaser on and from Completion
[1323]
4 TITLE TO ASSETS
All of the Assets:
4.1 are in the legal and beneficial ownership of the Vendor free from any encumbrance and from any contract to grant the same
4.2 are situated at the Property
4.3 are not to any extent surplus to requirement and
4.4 comprise all the assets now used in the Business
5 STOCKS
5.1 The items included in the Stocks are fit for their intended purpose and are of satisfactory quality, are not obsolete slow moving or likely to realise less than book value and are sufficient for the normal requirements of the Business
5.2 The work-in-progress included in the Stocks is at its normal level having regard to current orders
5.3 The raw material packaging materials and finished goods included in the Stocks are at their normal level having regard to the current trading requirements of the Business
[1324]
6 EQUIPMENT
All of the items comprising the Equipment:
6.1 are in a good and safe state of repair and condition and satisfactory working order
6.2 are adequate and not surplus to the requirements of the Business and
6.3 would not be expected to require replacement within a period of (number) months after the Transfer Date
6a SYSTEMS
Neither the performance nor the functionality of the Systems will be in any way affected by any date whether before at or after 1 January 2000 and that in particular the Systems will:
6a.1 at all times correctly process data containing any dates prior to at or after 1 January 2000; and
6a.2 recognise the year 2000 as a leap year
7 PROPERTY
7.1 The particulars of the Property shown in the fourth schedule are true complete and accurate
7.2 The Vendor has a good and marketable title to the Property for the estate or interest stated in the fourth schedule free from any defects or incumbrances and the Vendor has in its possession or under its control all duly stamped deeds and documents which are necessary to prove title to the Property
7.3 The Vendor is not in respect of the Business in occupation of or entitled to any estate or interest in any land or premises save the Property
7.4 The Property is in a good and substantial state of repair and condition and fit for the purposes for which it is presently used
7.5 The replies given by the Vendor’s Solicitors to the Purchaser’s Solicitors’ written enquiries concerning the Property are true and accurate in all respects
[1325]
8 INTELLECTUAL PROPERTY

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