AS PRESENTLY
CONDUCTED BY SELLER GROUP OR, TO THE KNOWLEDGE OF SELLER, BY BUYER;
(J)
AGREEMENT UNDER WHICH ANY MEMBER OF THE
SELLER GROUP OR, IN EACH CASE, ITS OFFICER, DIRECTOR, OR EMPLOYEE IS RESTRICTED
FROM SELLING, LICENSING OR OTHERWISE DISTRIBUTING ANY PRODUCTS OR SERVICES
RELATED TO THE PRODUCTS TO, CUSTOMERS OR POTENTIAL CUSTOMERS OR ANY CLASS OF
CUSTOMERS IN ANY GEOGRAPHIC AREA, DURING ANY PERIOD OF TIME OR IN ANY SEGMENT OF
THE MARKET;
(K)
ANY AGREEMENT INCLUDED IN THE ASSETS WHICH
IS NOT TERMINABLE WITHOUT PENALTY ON THREE (3) MONTHS' OR FEWER DAYS' NOTICE,
PROVIDING FOR PAYMENTS INDIVIDUALLY OR IN THE AGGREGATE IN EXCESS OF $200,000;
(L)
OTHER THAN THIS AGREEMENT, ANY AGREEMENT
FOR THE ACQUISITION OR DISPOSITION OF ASSETS RELATED TO THE BUSINESS ENTERED
INTO IN THE LAST THREE (3) YEARS, OTHER THAN IN THE ORDINARY COURSE OF BUSINESS;
AND
(M)
AGREEMENT (EXCEPT AS OTHERWISE SET FORTH IN
(A) THROUGH (L) ABOVE), OTHER THAN IN THE ORDINARY COURSE OF BUSINESS THAT IS
MATERIAL TO THE BUSINESS.
Except as set forth on Schedule 3.12 of the Disclosure Schedules, all such
agreements are valid, binding and enforceable in accordance with their terms and
Seller Group is not in default under any of the aforesaid agreements (to the
extent any such default could reasonably be expected to have a material effect
on the Seller Groups' rights, obligations or remedies pursuant to such
agreement), and, to the Knowledge of Seller, no other party is in default under
any of the aforesaid agreements.
Seller Group has provided Buyer with access to
true and complete copies of each agreement, contract and commitment identified
on Schedule 3.12 of the Disclosure Schedules that is not subject to a
confidentiality agreement limiting its disclosure.
SECTION 3.13
TAXES
Except as set forth on Schedule 3.13:
(A)
THE MEMBERS OF THE SELLER GROUP HAVE DULY
FILED ALL TAX RETURNS RELATED TO THE BUSINESS THAT ARE REQUIRED TO BE FILED AND
HAVE DULY PAID OR CAUSED TO BE DULY PAID IN FULL OR MADE PROVISION IN ACCORDANCE
20
WITH GAAP (OR THERE HAS BEEN PAID OR PROVISION HAS BEEN MADE ON THEIR BEHALF)
FOR THE PAYMENT OF ALL TAXES (AS HEREINAFTER DEFINED) RELATED TO THE BUSINESS
THAT ARE OWED (WHETHER OR NOT SHOWN ON ANY TAX RETURNS) FOR ALL PERIODS OR
PORTIONS THEREOF ENDING ON OR PRIOR TO THE CLOSING DATE.
ALL SUCH TAX RETURNS
ARE CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS AND ACCURATELY REFLECT ALL
LIABILITY FOR TAXES FOR THE PERIODS COVERED THEREBY.
(B)
THERE ARE NO LIENS FOR TAXES ON THE ASSETS
OR THE BUSINESS OTHER THAN PERMITTED ENCUMBRANCES.
TO THE KNOWLEDGE OF SELLER,
THERE IS NO BASIS FOR THE ASSERTION OF ANY CLAIM RELATING TO OR ATTRIBUTABLE TO
THE TAXES WHICH, IF ADVERSELY DETERMINED, WOULD RESULT IN ANY LIEN UPON ANY OF
THE ASSETS OR THE BUSINESS.
(C)
SINCE THE DATE OF THE REFERENCE BALANCE
SHEET, THE MEMBERS OF THE SELLER GROUP HAVE NOT MADE ANY CHANGE IN ACCOUNTING
METHODS, RECEIVED A RULING FROM