Purchased Subsidiary. Seller is aware and agrees that the Purchased Assets include 149,982 equity shares of Indian Rupees 10/- each (“Subsidiary Shares”), comprising the entire outstanding and fully paid up share capital of the Purchased Subsidiary, and that such Subsidiary Shares will be transferred, free of any and all Encumbrances, to Buyer and/or its nominees or representatives as set forth herein. The transfer of such Subsidiary Shares will be completed at such time as agreed between Seller and Buyer and the parties will endeavor to complete the same as part of the Closing. In relation to the operations of the Purchased Subsidiary and the Subsidiary Shares, Seller represents and warrants to Buyer as below, and further confirms that such representations and warranties will, as far as applicable, be deemed to be repeated by Seller at the time of completion of the transfer of the Subsidiary Shares to Buyer and/or Buyer’s nominees or representatives: (a) The Subsidiary Shares have been validly issued and are fully paid up and are free from Encumbrances. Upon transfer of such Subsidiary Shares to Buyer or its representatives or nominees, such transferees will acquire good and valid title to the Subsidiary Shares, free and clear of any and all Encumbrances. (b) The Purchased Subsidiary is a company duly organized and validly existing under the laws of India and has the requisite corporate power and authority (including all required statutory and other registrations, consents and approvals) required to carry on its business as it is now being conducted. (c) Other than the Subsidiary Shares, no other shares or other securities (including any options, rights, warrants or other instruments that may give rise to a right in favor of any person to acquire shares in the Purchased Subsidiary) have been issued. (d) Seller has provided to Buyer audited financial statements, along with the report of auditors and Board of Directors of the Purchased Subsidiary, for the period ending March 31, 2009 (collectively, the “Subsidiary Financial Statements”), and Seller represents that the Purchased Subsidiary does not have any liabilities other than that disclosed in the Subsidiary Financial Statements. (e) On and from April 1, 2009, (i) the business and affairs of the Purchased Subsidiary have been conducted in accordance with past practices consistent with applicable law and for purposes of its business, and no extraordinary commitments have been made or expenses incurred by or on behalf of the Purchased Subsidiary; (ii) there has been no event, condition or occurrence that has had or would reasonably be expected to have a material adverse effect on the Purchased Subsidiary; (iii) Except the increase in the rate of compensation approved in the ordinary course of operations, there has been no increase in any manner in the rate of compensation of any consultant, officer or other employee employed or retained by the Purchased Subsidiary; (iv) There has been no damage to or destruction or loss of any of the assets of the Purchased Subsidiary, whether or not covered by insurance that had or is reasonably expected to have a material adverse effect on the Purchased Subsidiary; and (v) The Purchased Subsidiary has not cancelled or refused to honor any debts owed by it. (f) The Purchased Subsidiary has maintained all relevant records and registers (including the registers and records required to be maintained under the Companies Act, 1956 of India, and the relevant Tax Laws in India) for recording its financial and other transactions in accordance with applicable Law, and such records and registers fairly and accurately reflect the transactions undertaken, or statement of assets and liabilities, as the case may be. (g) The Purchased Subsidiary’s use of Intellectual Property Rights, whether created by itself or licensed from any other person, are in accordance with the terms of applicable law and in terms of relevant licenses obtained from third parties. Seller has received no notice of, and to the knowledge of Seller there is no basis for a claim that the operations, activities, products, software, equipment, machinery or processes of the Purchased Subsidiary infringe upon any Intellectual Property Rights of any person. (h) The Purchased Subsidiary does not have any legal proceedings initiated by or against it (including any notices received from any Governmental Entity). (i) The Purchased Subsidiary has, within the time and in the manner prescribed under applicable law, filed with the appropriate governmental and other authorities, all Tax Returns that it is required to file for all Tax periods in respect of its business and paid all Taxes that have become due pursuant to such returns or pursuant to any assessment which have become payable. To the knowledge of Seller, all such Tax Returns were prepared in good faith and disclose all Taxes required to be paid in respect of the business of the Purchased Subsidiary. (j) The Purchased Subsidiary is in compliance with applicable Law relating to employees and employee benefits, and is prompt in paying the employees and other persons engaged by it, all salary and other benefits (including provident fund dues) due to them. (k) Seller has disclosed and has caused the Purchased Subsidiary to disclose in writing to Buyer, prior to the execution hereof, correct and complete details of all material and relevant facts and particulars relating to the matters, affairs, operations, prospects, assets and liabilities of the Purchased Subsidiary, to enable Buyer and/or its representatives and advisers to conduct proper due diligence of the condition, business, operations or prospects of the Purchased Subsidiary.
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Sources: Asset Purchase Agreement, Asset Purchase Agreement (SolarWinds, Inc.)
Purchased Subsidiary. Seller is aware and agrees that the Purchased Assets include 149,982 equity shares of Indian Rupees 10/- each (“Subsidiary Shares”), comprising the entire outstanding and fully paid up share capital of the Purchased Subsidiary, and that such Subsidiary Shares will be transferred, free of any and all Encumbrances, to Buyer and/or its nominees or representatives as set forth herein. The transfer of such Subsidiary Shares will be completed at such time as agreed between Seller and Buyer and the parties will endeavor to complete the same as part of the Closing. In relation to the operations of the Purchased Subsidiary and the Subsidiary Shares, Seller represents and warrants to Buyer as below, and further confirms that such representations and warranties will, as far as applicable, be deemed to be repeated by Seller at the time of completion of the transfer of the Subsidiary Shares to Buyer and/or Buyer’s nominees or representatives:
(a) The Subsidiary Shares have been validly issued and are fully paid up and are free from Encumbrances. Upon transfer of such Subsidiary Shares to Buyer or its representatives or nominees, such transferees will acquire good and valid title to the Subsidiary Shares, free and clear of any and all Encumbrances.
(b) The Purchased Subsidiary is a limited liability company duly organized and organized, validly existing and in good standing under the laws of India its jurisdiction of organization and has the requisite corporate power all powers and authority (including all required statutory and other registrationsmaterial governmental licenses, authorizations, permits, consents and approvals) approvals required to carry on its business as it now conducted. The Purchased Subsidiary is now being conducted.
(c) Other than the Subsidiary Sharesduly qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, no other shares except for those jurisdictions where failure to be so qualified would not, individually or other securities (including any options, rights, warrants or other instruments that may give rise to a right in favor of any person to acquire shares in the Purchased Subsidiary) aggregate, have been issued.
(d) a Material Adverse Effect. Seller has provided heretofore delivered to Buyer audited financial statements, along with Parent true and complete copies of the report Articles of auditors Organization and Board of Directors Bylaws of the Purchased Subsidiary, for in each case, as in effect on the period ending March 31, 2009 date hereof (collectively, together with all amendments thereto) (the “Subsidiary Financial Statements”), and Seller represents that the Purchased Subsidiary does not have any liabilities other than that disclosed in the Articles of Organization” and “Purchased Subsidiary Financial StatementsBylaws”, respectively).
(eb) On and from April 1, 2009,
(i) the business and affairs All of the Purchased Subsidiary have been conducted in accordance with past practices consistent with applicable law Interests are owned beneficially and for purposes of its businessrecord by Seller, and no extraordinary commitments have been made or expenses incurred by or on behalf as of the Purchased Subsidiary;
(ii) there has been no eventClosing will be free and clear of any Lien, condition or occurrence that has had or would reasonably be expected and Seller shall transfer and deliver to have a material adverse effect on Buyer at the Closing valid title to the Purchased Subsidiary;
(iii) Subsidiary Interests free and clear of any Lien. Except for the increase in the rate of compensation approved in the ordinary course of operationsPurchased Subsidiary Interests, there has been are no increase in any manner in the rate of compensation of any consultant, officer outstanding (i) membership interests or other employee employed or retained by the Purchased Subsidiary;
(iv) There has been no damage to or destruction or loss of any of the assets securities of the Purchased Subsidiary, whether (ii) securities of Seller or not covered by insurance that had any other Person convertible into or is reasonably expected to have a material adverse effect on exchangeable or exercisable for any membership interests or other equity or similar interests in the Purchased Subsidiary; and
, (viii) The options or other rights to acquire from Seller or the Purchased Subsidiary, or other obligation of Seller or the Purchased Subsidiary has not cancelled to issue, any securities convertible into or refused to honor any debts owed by it.
(f) The exchangeable for membership interests or other equity or similar interests in the Purchased Subsidiary has maintained all relevant records and registers (including the registers and records required items in clauses (i) through (iii) being referred to be maintained under the Companies Act, 1956 of India, and the relevant Tax Laws in India) for recording its financial and other transactions in accordance with applicable Law, and such records and registers fairly and accurately reflect the transactions undertaken, or statement of assets and liabilities, collectively as the case may be.
(g) The “Purchased Subsidiary’s use of Intellectual Property Rights, whether created by itself or licensed from any other person, Subsidiary Securities”). There are in accordance with the terms of applicable law and in terms of relevant licenses obtained from third parties. Seller has received no notice of, and to the knowledge outstanding obligations of Seller there is no basis for a claim that or the operationsPurchased Subsidiary to repurchase, activities, products, software, equipment, machinery redeem or processes otherwise acquire any outstanding Purchased Subsidiary Securities. None of the Purchased Subsidiary infringe upon Interests have been issued in violation of, and none are subject to, any Intellectual Property Rights purchase option, call, right of first refusal, preemptive, subscription, or other similar right. Neither Seller nor the Purchased Subsidiary is party to any personarrangement granting to any Person any stock appreciation, phantom stock or other similar right with respect to the Purchased Subsidiary Interests or the Purchased Subsidiary.
(hc) The Purchased Subsidiary does not have own or hold any legal proceedings initiated by assets or against it (including any notices received from any Governmental Entity).
properties other than (i) The Purchased Subsidiary has, within the time and in the manner prescribed under applicable law, filed with the appropriate governmental and other authorities, all Tax Returns that it is required to file for all Tax periods in respect of its business and paid all Taxes that have become due pursuant to such returns or pursuant to any assessment which have become payable. To the knowledge of Seller, all such Tax Returns were prepared in good faith and disclose all Taxes required to be paid in respect of the business rights of the Purchased Subsidiary.
Subsidiary under the Contracts set forth on Section 3.04(c) of the Seller Disclosure Schedule (j) The collectively, the “Purchased Subsidiary is in compliance with applicable Law relating to employees Contracts”), (ii) cash and employee benefits, and is prompt in paying the employees and other persons engaged by it, all salary and other benefits (including provident fund duesiii) due to them.
(k) Seller has disclosed and has caused receivables from Seller. There are no liabilities or obligations of the Purchased Subsidiary to disclose in writing to Buyer, prior to the execution hereof, correct and complete details of all material and relevant facts and particulars relating to the matters, affairs, operations, prospects, assets and other than liabilities or obligations of the Purchased Subsidiary, to enable Buyer and/or its representatives and advisers to conduct proper due diligence of the condition, business, operations or prospects of Subsidiary arising under the Purchased SubsidiarySubsidiary Contracts.
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