Seller has not received any notice of any Tax
deficiency outstanding, proposed or assessed against or allocable to it in
respect of the Business, its assets or employees, and has not executed any
waiver of any statute of limitations on the assessment or collection of any Tax
or executed or filed with any Governmental Body any Contract now in effect
extending the period for assessment or collection of any Taxes against it in
respect of the Business, its assets or employees.
There are no Encumbrances for
Taxes upon, or pending or Threatened against, any Purchased Asset.
Seller is
not subject to any Tax allocation or sharing Contract relating to the Business.
Seller (i) has not been a member of an Affiliated Group filing a consolidated
federal income Tax Return (other than a group the common parent of which was
Seller) or (ii) has no Liability for the Taxes of any Person under Treas. Reg.
Section 1.1502-6 or similar Law, as a transferee or successor, by Contract, or
otherwise.
6.10
Title to Purchased Assets.
Seller has good, marketable, and indefeasible title to all of the Purchased
Assets, in each case free and clear of all Encumbrances.
Upon and following the
Closing, Buyer will have good, marketable, and indefeasible title to all of the
Purchased Assets, in each case free and clear of all Encumbrances.
The
Purchased Assets constitute all the assets used in the operation of the business
since January 31, 2005 (other than inventory sold and accounts receivable in the
Ordinary Course of Business).
6.11
Intellectual Property.
(A)
WITH RESPECT TO EACH TRADE SECRET CONSTITUTING PURCHASED ASSETS,
THE DOCUMENTATION PROVIDED TO BUYER RELATING TO SUCH TRADE SECRET IS CURRENT,
ACCURATE, AND SUFFICIENT IN DETAIL AND CONTENT TO IDENTIFY AND EXPLAIN IT AND TO
ALLOW ITS FULL AND PROPER USE BY BUYER WITHOUT RELIANCE ON ANY INDIVIDUAL'S
KNOWLEDGE OR MEMORY.
SELLER HAS TAKEN ALL REASONABLE PRECAUTIONS TO PROTECT
SUCH TRADE SECRET'S SECRECY, CONFIDENTIALITY, AND VALUE.
NO SUCH TRADE SECRET
IS PART OF THE PUBLIC KNOWLEDGE OR LITERATURE OR, TO SELLER'S KNOWLEDGE, HAS
BEEN USED, DIVULGED, OR APPROPRIATED EITHER FOR THE BENEFIT OF ANY THIRD PERSON
OR THE DETRIMENT OF THE BUSINESS.
NO SUCH TRADE SECRET REQUIRED IS SUBJECT TO
ANY ADVERSE CLAIM NOR HAS ANY ADVERSE CLAIM BEEN THREATENED WITH RESPECT TO ANY
SUCH TRADE SECRET AND THERE IS NO BASIS THEREFOR.
(B)
SELLER OWNS OR HAS THE RIGHT TO USE PURSUANT TO AN ENFORCEABLE
CONTRACT ALL INTELLECTUAL PROPERTY NECESSARY OR DESIRABLE TO OPERATE THE
BUSINESS.
EACH ITEM OF INTELLECTUAL PROPERTY USED BY SELLER IN THE OPERATION OF
THE BUSINESS IMMEDIATELY PRIOR TO THE CLOSING WILL BE OWNED OR AVAILABLE FOR USE
BY BUYER ON IDENTICAL TERMS AND CONDITIONS IMMEDIATELY SUBSEQUENT TO THE
CLOSING.
SELLER HAS TAKEN ALL NECESSARY AND DESIRABLE ACTION TO MAINTAIN AND
PROTECT THE OWNERSHIP, CONFIDENTIALITY AND VALUE OF EACH ITEM OF INTELLECTUAL
PROPERTY THAT IT OWNS OR USES.
(C)
SELLER HAS DELIVERED TO BUYER CORRECT AND COMPLETE COPIES OF ALL
WRITTEN DOCUMENTATION EVIDENCING OWNERSHIP AND PROSECUTION (IF