OR IN CONJUNCTION WITH ANY OTHER EVENT, INCLUDING A TERMINATION OF
EMPLOYMENT) WILL (I) RESULT IN ANY PAYMENT (INCLUDING ANY BONUS, SEVERANCE,
UNEMPLOYMENT COMPENSATION, DEFERRED COMPENSATION, FORGIVENESS OF INDEBTEDNESS OR
GOLDEN PARACHUTE PAYMENT) BECOMING DUE TO ANY CURRENT OR FORMER EMPLOYEE,
OFFICER, DIRECTOR OR CONSULTANT UNDER ANY COMPANY BENEFIT PLAN; (II) INCREASE IN
ANY BENEFIT OTHERWISE PAYABLE UNDER ANY COMPANY BENEFIT PLAN; (III) RESULT IN
THE ACCELERATION OR CREATION OF ANY RIGHTS OF ANY PERSON TO BENEFITS UNDER ANY
COMPANY BENEFIT PLAN (INCLUDING THE ACCELERATION OF THE VESTING OR
EXERCISABILITY OF ANY STOCK OPTIONS OR RESTRICTED STOCK OR THE ACCELERATION OR
CREATION OF ANY RIGHTS UNDER ANY COMPANY BENEFIT PLAN); (IV) RESULT IN ANY
OBLIGATION TO FUND ANY TRUST OR OTHER ARRANGEMENT WITH RESPECT TO COMPENSATION
OR BENEFITS UNDER A COMPANY BENEFIT PLAN; OR (V) RESULT IN ANY PAYMENT OR
BENEFIT THAT WILL FAIL TO BE DEDUCTIBLE UNDER SECTION 280G OF THE CODE.
5.11.
Taxes.
(A)
EACH COMPANY HAS DULY FILED WITH THE APPROPRIATE TAX AUTHORITY ALL
INCOME TAX RETURNS AND ALL OTHER MATERIAL TAX RETURNS THAT IT WAS REQUIRED TO
FILE (OR HAS TIMELY AND PROPERLY FILED VALID EXTENSIONS OF TIME WITH RESPECT TO
THE FILING THEREOF), AND EACH SUCH TAX RETURN WAS COMPLETE AND ACCURATE IN ALL
MATERIAL RESPECTS.
(B)
EACH COMPANY HAS TIMELY PAID ALL TAXES DUE AND OWING BY IT, EXCEPT
WITH RESPECT TO TAXES THAT ARE BEING CONTESTED IN GOOD FAITH AND HAVE BEEN
ADEQUATELY PROVIDED FOR IN THE INTERIM FINANCIAL STATEMENTS IN ACCORDANCE WITH
GAAP. ALL TAXES THAT THE COMPANIES HAVE BEEN REQUIRED TO COLLECT OR WITHHOLD
HAVE BEEN DULY COLLECTED OR WITHHELD AND, TO THE EXTENT REQUIRED WHEN DUE, HAVE
BEEN DULY PAID TO THE PROPER TAX AUTHORITY AND EACH COMPANY HAS COMPLIED WITH
ALL MATERIAL INFORMATION REPORTING AND RECORD KEEPING REQUIREMENTS RELATED TO
WITHHOLDING.
(C)
NO MATERIAL DEFICIENCIES FOR TAXES OF THE COMPANIES HAVE BEEN
CLAIMED, PROPOSED OR ASSESSED BY ANY TAX AUTHORITY IN WRITING.
THERE ARE NO
PENDING OR, TO THE KNOWLEDGE OF THE SELLERS AND CCR, THREATENED MATERIAL AUDITS,
SUITS, PROCEEDINGS, ACTIONS OR CLAIMS FOR OR RELATING TO ANY LIABILITY IN
RESPECT OF TAXES OF THE COMPANIES.
SCHEDULE 5.11 OF THE SELLERS DISCLOSURE
SCHEDULES CONTAINS A LIST OF ALL MATERIAL TAX RETURNS OF THE COMPANIES THAT HAVE
BEEN AUDITED OR ARE CURRENTLY UNDER AUDIT AND DESCRIBES ANY DEFICIENCIES OR
OTHER AMOUNTS THAT WERE PAID OR ARE CURRENTLY BEING CONTESTED. THERE ARE NO
PENDING CLAIMS FOR REFUND OF ANY TAX OF ANY OF THE COMPANIES.
44
(D)
THERE ARE NO LIENS FOR TAXES (OTHER THAN PERMITTED EXCEPTIONS)
UPON THE ASSETS OF THE COMPANIES.
(E)
AT ALL TIMES SINCE THEIR FORMATION, EACH COMPANY HAS BEEN
CLASSIFIED FOR U.S. FEDERAL INCOME TAX PURPOSES EITHER AS A PARTNERSHIP OR AS AN
ENTITY DISREGARDED AS SEPARATE FROM ITS OWNER WITHIN THE MEANING OF TREASURY
REGULATION SECTION 301.7701-2(C)(2)(I) EXCEPT FOR THOSE SUBSIDIARIES SET FORTH
ON SCHEDULE 5.11 OF THE SELLERS DISCLOSURE SCHEDULES HERETO, WHICH HAVE BEEN
CLASSIFIED AS CORPORATIONS FOR SUCH PURPOSES.
(F)
EACH OF