and including the Closing Date, and no material amount payable on account of Section 4980B of the Code has been incurred with respect to any current or former employees of CCC (or their beneficiaries).
3.16.7 No benefit payable or which may become payable by CCC pursuant to any CCC Benefit Arrangement or as
a result of or arising under this Agreement shall constitute an \te payment\in Section 280G(b)(1) of the Code) which is subject to the imposition of an excise tax under Section 4999 of the Code or which would not be deductible by reason of Section 280G of the Code. CCC is not a party to any (a) agreement (other than as described in (b) below) with any executive officer or other key employee thereof (i) the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving CCC in the nature of any of the transactions contemplated by this Agreement, (ii) providing any term of employment or
compensation guarantee, or (iii) providing severance benefits or other benefits after the termination of employment of such employee regardless of the reason for such termination of employment, or (b) agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be materially increased, or the vesting of benefits of which will be materially accelerated, by the occurrence of the Exchange or any of the other transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
3.17 Brokers. [COMPLETE]
3.18 Insurance. Exhibit 3.20 hereto lists all fire and casualty, general liability, business interruption, product liability,
errors and omissions, and sprinkler and water damage insurance maintained by CCC.
3.19 Environmental Matters.
3.19.1 During the period that CCC has leased or owned its respective properties or owned or operated any
facilities, there have been no disposals, releases or threatened releases of Hazardous Materials (as defined below) on, from or under such properties or facilities that resulted from any act or omission of CCC or any of its employees, agents or invitees. The CCC Shareholder has no knowledge of any presence, disposals, releases or threatened releases of Hazardous Materials on, from or under any of such properties or facilities, which may have occurred prior to CCC having taken possession of any of such properties or facilities. For the purposes of this Agreement, the terms \and \y the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. (S) 9601 et seq., as amended (\LA\reement \ous Materials\hazardous or toxic substance, material or waste which is or becomes prior to the Closing regulated under, or defined as a \\ERCLA; (b) any similar federal, state or local law; or (c) regulations promulgated under any of the above laws or statutes.
3.19.2 None of the properties or facilities of CCC is in violation of any national or provincial, ordinance,
regulation or order relating to industrial hygiene or to the environmental conditions on, under or about such properties or facilities, including, but not limited to, soil and ground water condition, except for such violations as would not have a Material Adverse Effect. During the time that CCC
has owned or leased its properties and facilities, neither CCC nor, to the best knowledge of CCC and the CCC Shareholder, any third party, has used, generated, manufactured or stored on, under or about such properties or facilities or transported to or from such properties or facilities any Hazardous Materials, other than CCC's lawful use of standard office supplies customarily used in office environments that contain legally permitted amounts of Hazardous Materials that would have no Material Adverse Effect.
3.19.3 During the time that CCC has owned or leased its properties and facilities, there has been no litigation
brought or threatened against CCC, or, to the best knowledge of CCC and the CCC Shareholder, against any lessor or owner of real property leased by CCC, or any settlement reached by CCC or the CCC Shareholder with any party or parties alleging the presence, disposal, release or threatened release of any hazardous materials on, from or under any of such properties or facilities.
3.20 Product Warranties and Product Liability Claims.
(a) All products sold, serviced or distributed by CCC and all services provide by CCC at any time prior to the
Closing Date have been in conformance in all material respects with all applicable contractual
commitments and all express or implied warranties of CCC and no material liability exists for replacement thereof or other damages in connection with such sales or deliveries or services at any time prior to the Closing Date (except as may be reflected or expressly reserved for in the Latest Balance Sheet).
(b) The warranty and repair Claims with respect to the products made, designed and sold by CCC and all services
provided by CCC as part of the Business prior to the Closing Date have been administered by CCC and have consisted solely of routine warranty and repair Claims for the return of defective or non conforming merchandise, which Claims have individually and in the aggregate been of an immaterial nature. There exist no Claims against CCC and, to the knowledge of the CCC Shareholder, there exists no reasonable basis for any Claims against CCC for injury to Persons or property suffered by any Person as a result of the sale or use of any product made, designed or sold by CCC or any service provided by CCC prior to the Closing Date, including, but not limited to, Claims arising out of the defective or unsafe nature of any products.
4. REPRESENTATIONS AND WARRANTIES OF AAA
AAA hereby represents and warrants each of the following representations and statements in this Section 4 are true and correct:
4.1 Organization and Good Standing. AAA is a corporation duly organized, validly existing and in good standing under
the laws of the State of _________(PLACENAME), and has the corporate power and authority to own, operate and lease its properties and to carry on its business as now conducted and as proposed to be conducted. 4.2 Power, Authorization and Validity.
4.2.1 AAA has the right, power and authority to enter into, execute and perform its obligations under this
Agreement and the AAA Ancillary Agreements and to consummate the Exchange. The execution, delivery and performance of this Agreement and the AAA Ancillary Agreements by AAA have been duly and validly approved and authorized by all necessary action on the part of AAA and AAA's Board of Directors.
4.2.2 No filing, authorization, consent, approval or order, governmental or otherwise, is necessary or required to
enable AAA to enter into this Agreement and the AAA Ancillary Agreements and consummate the Exchange. No filing, authorization, consent, approval or order, governmental or otherwise, is necessary or required to enable AAA to perform those obligations under this Agreement and the AAA Ancillary Agreements that are to be performed after the consummation of the Exchange except for (a) any filings with the Securities and Exchange Commission and other applicable securities authorities contemplated by the Registration Rights Agreement attached hereto as Exhibit 2.1.3, and (b) such filings as may be required to comply with applicable securities laws in connection with the Exchange itself.
4.2.3 This Agreement and the AAA Ancillary Agreements are, or when executed by AAA will be, valid and
binding obligations of AAA, enforceable in accordance with their respective terms, except as to the effect, if any, of (a) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (b) rules of law governing specific performance, injunctive relief and other equitable remedies.
4.3 No Violation of Material Agreements. Neither the execution and delivery of this Agreement nor any AAA Ancillary
Agreement, nor the consummation of the transactions contemplated hereby, will conflict with, or (with or without notice or lapse of time, or both) result in: (a) a termination, breach, impairment or violation of (i) any provision of the Certificate of Incorporation or Bylaws of AAA, as currently in effect or (ii) any federal, state, local or foreign judgment, writ, decree, order, statute, rule or regulation to which AAA or its assets or properties is subject; or (b) a termination, or a material breach, impairment or violation, of any material instrument or contract to which AAA is a party or by which AAA or its properties are bound. AAA is not required to obtain the consent of any third party to consummate the Exchange.
4.4 Disclosure. AAA has made available to CCC a disclosure package consisting of AAA's most recent Form 10 K for its
fiscal year ended _________,_________,_________(M/D/Y), all Forms 10 Q filed by AAA with the SEC after the date of such Form 10 K and before the Agreement Date, all Forms 8 K and 8 K/A filed by AAA with the SEC after the date of its most recent Form 10 Q and the Proxy Statement for AAA's annual meeting of stockholders held on _________,_________,_________(M/D/Y) (the \dates, documents filed by AAA with the SEC including, without limitation, any financial statements or schedules included or incorporated therein and included in the AAA Disclosure Package complied in all material respects with the requirements of the 1933 Act or the 1934 Act, as the case may be. The consolidated financial statements of AAA included in such SEC documents have been prepared in accordance with the books and records of AAA and fairly present the financial condition of AAA and its consolidated subsidiaries as of such date and the consolidated results of operations and cash flows for the periods then ended. The consolidated financial statements in such SEC documents have been prepared in accordance with United States generally accepted accounting principles consistently applied during the periods involved, except as otherwise disclosed in the notes to such financial statements. The AAA Disclosure Package, this Agreement, the exhibits and schedules hereto, and any certificates or documents to be delivered to CCC pursuant to this Agreement, when taken together, do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained herein and therein, in light of the circumstances under which such statements were made, not misleading.
4.5 Financial Condition. There has been no material adverse change in the financial condition or business of AAA, taken
as whole, since the date of the most recent financial statements included in the AAA Disclosure Package.
4.6 Validity of Shares. The shares of AAA Common Stock to be issued pursuant to the Exchange shall, when issued: (a)
be duly authorized, validly issued, fully paid and nonassessable and free of liens and encumbrances created by AAA, and (b) be free and clear of any transfer restrictions, liens and encumbrances except for restrictions on transfer under applicable United States securities laws, including Rule 144 promulgated under the 1933 Act. 4.7 South Afican Assets and Revenues. AAA's _________(PLACENAME) assets and revenues are below the thresholds
that would require a filing with the _________(PLACENAME) Competition Commission.
5. COVENANTS OF THE CCC SHAREHOLDER
During the period from the Agreement Date until the earlier to occur of (i) the Closing or (ii) the termination of this Agreement in accordance with Section 10, the CCC Shareholder hereby covenants and agrees with AAA as follows: 5.1 Advice of Changes. The CCC Shareholder will promptly advise AAA in writing (a) of any event occurring
subsequent to the date of this Agreement that would render any representation or warranty of the CCC Shareholder contained in Section 3 of this Agreement, if made on or as of the date of such event or the Closing Date, untrue or inaccurate in any material respect and (b) of any material adverse change in CCC's assets, business, results of operations or financial condition. The CCC Shareholder shall cause CCC to deliver to AAA within thirty (30) days after the end of each quarterly accounting period ending after the Agreement Date and before the Closing Date, an unaudited balance sheet and statement of operations, which financial statements shall be prepared in the ordinary course of business consistent with CCC's past practice (except that such financial statements shall be prepared in accordance with _________(PLACENAME) GAAP), in accordance with CCC's books and records and _________(PLACENAME) GAAP and shall fairly present the financial position of CCC on a consolidated basis as of their respective dates and the results of CCC's operations on a consolidated basis for the periods then ended.
5.2 Maintenance of Business. The CCC Shareholder shall cause CCC to carry on and preserve its business and its
relationships with customers, suppliers, employees, consultants and others in substantially the same manner as it has prior to the date hereof. If the CCC Shareholder becomes aware of a material deterioration in the relationship of CCC with any customer, supplier, key employee, consultant or business partner, he will promptly bring such information to the attention of AAA in writing and, if requested by AAA, will exert his best efforts to restore the relationship.
5.3 Conduct of Business. The CCC Shareholder shall cause CCC to continue to conduct its business and maintain its
business relationships in the ordinary and usual course and to not, without the prior written consent of the President of AAA:
(a) borrow or lend any money other than advances to in the ordinary course of CCC's business consistent with
CCC's past practice;
(b) purchase or sell shares or other equity interest in any corporation or other business or enter into any transaction
or agreement not in the ordinary course of CCC's business consistent with CCC's past practice; (c) encumber, or permit to be encumbered, any of its assets;
(d) sell, transfer or dispose of any of its assets except in the ordinary course of CCC's business consistent with
CCC's past practice;
(e) enter into any material lease or contract for the purchase or sale of any property, whether real or personal,
tangible or intangible, except as otherwise contemplated by this Agreement, or except in the ordinary course of business and consistent with past practice;
(f) pay any bonus, increased salary or special remuneration to any officer, employee or consultant (except for
normal salary increases consistent with past practices not to exceed 5% of such officer's, employee's or consultant's base annual compensation, except pursuant to existing arrangements previously disclosed to and approved in writing by AAA) or enter into any new employment or consulting agreement with any such person;
(g) change any of its accounting;
(h) declare, set aside or pay any cash or stock dividend or other distribution in respect of any of its shares, redeem,
repurchase or otherwise acquire any of its capital stock or other securities, pay or distribute any cash or property to any CCC shareholder or security holder or make any other cash payment to any shareholder or security holder of CCC that is unusual, extraordinary, or not made in the ordinary course of CCC's business consistent with CCC's past practice;
(i) amend or terminate any contract, agreement or license to which it is a party; (j) guarantee or act as a surety for any obligation of any third party;
(k) waive or release any material right or claim except in the ordinary course of business, consistent with past
practice or agree to any audit assessment by any tax authority or file any federal or state income or franchise tax return unless copies of such returns have been delivered to AAA for its review prior to filing; (l) issue, sell, create or authorize any shares of its capital stock of any class or series or any other of its securities,
or issue, grant or create any warrants, obligations, subscriptions, options, convertible securities, or other commitments to issue shares of its capital stock or securities ultimately exchangeable for, or convertible into, shares of its capital stock;
(m) subdivide or split or combine or reverse split the issued and outstanding shares of its capital stock of any class
or enter into any recapitalization affecting the number of issued and outstanding shares of its capital stock of any class or affecting any other of its securities;
(n) merge, consolidate or reorganize with, or acquire, any entity or enter into any negotiations, discussions or
agreement for such purpose; (o) amend its charter documents;
(p) enter into any license or agreement to license any of its technology or Intellectual Property Rights; (q) change any insurance;
(r) agree to do any of the things described in the preceding clauses 5.3(a) through 5.3(q).
5.4 Regulatory Approvals. The CCC Shareholder shall cause CCC to and the CCC Shareholder will, promptly execute
and file, or join in the execution and filing, of any application or other document that may be necessary in order to obtain the authorization, approval or consent of any governmental body, federal, state, local or foreign, which may be reasonably required, or which AAA may reasonably request, in connection with the consummation of the transactions contemplated by this Agreement, provided that, other than Exchange Control Approval, AAA shall
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