OF THE NATURE THAT ARE
REQUIRED BY GAAP TO BE DISCLOSED THAT WERE INCURRED IN THE ORDINARY COURSE OF
BUSINESS AND CONSISTENT WITH PAST PRACTICE SINCE DECEMBER 31, 2008 AND EXCEPT
FOR LIABILITIES AS WOULD NOT REASONABLY BE EXPECTED TO HAVE AN ADVERSE EFFECT ON
THE CONDITION (FINANCIAL OR OTHERWISE), PROPERTIES, ASSETS, LIABILITIES,
OPERATIONS, RESULTS OF OPERATIONS OR PROSPECTS OF THE BUSINESS OR EITHER OF THE
SELLERS' ABILITY TO PERFORM ITS OBLIGATIONS AS CONTEMPLATED IN THIS AGREEMENT.
10
3.10
ABSENCE OF CERTAIN EVENTS.
SINCE JANUARY 1, 2009, THE SELLERS HAVE
CONDUCTED THE BUSINESS ONLY IN THE ORDINARY AND USUAL COURSE AND IN A MANNER
CONSISTENT WITH PAST PRACTICES AND THERE HAS NOT BEEN ANY CHANGE, EVENT,
DEVELOPMENT, DAMAGE OR CIRCUMSTANCE AFFECTING THE ACQUIRED ASSETS OR THE
BUSINESS WHICH, INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD OR COULD REASONABLY BE
EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT.
3.11
TAX MATTERS.
ALL TAXES ARISING FROM THE OPERATION OF THE BUSINESS
HAVE BEEN TIMELY PAID OR ARE FULLY ACCRUED IN THE FINANCIAL STATEMENTS OR IN THE
FINANCIAL RECORDS OF THE SELLERS.
ALL TAXES THAT EITHER SELLER IS OR WAS
REQUIRED BY LAW TO HAVE WITHHELD OR COLLECTED IN CONNECTION WITH THE OPERATION
OF THE BUSINESS HAVE BEEN DULY WITHHELD OR COLLECTED AND, TO THE EXTENT
REQUIRED, HAVE BEEN PAID TO THE PROPER GOVERNMENTAL AUTHORITY.
NEITHER SELLER
HAS BEEN INFORMED BY ANY JURISDICTION THAT SUCH JURISDICTION BELIEVES THAT SUCH
SELLER WAS REQUIRED TO FILE ANY TAX RETURN IN CONNECTION WITH THE OWNERSHIP OR
OPERATION OF THE ACQUIRED ASSETS OR THE BUSINESS THAT WAS NOT FILED.
NEITHER
SELLER HAS BEEN A UNITED STATES REAL PROPERTY HOLDING CORPORATION WITHIN THE
MEANING OF SECTION 897(C)(2) OF THE CODE DURING THE APPLICABLE PERIOD SPECIFIED
IN SECTION 897(C)(1)(A)(II) OF THE CODE, AND NO WITHHOLDING PURSUANT TO
SECTION 1445 OF THE CODE WILL BE REQUIRED IN CONNECTION WITH THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY. THERE ARE NO LIENS WITH RESPECT TO TAXES
UPON ANY OF THE ACQUIRED ASSETS.
3.12
INTELLECTUAL PROPERTY; PRIVACY.
(A)
SECTION 3.12(A) OF THE DISCLOSURE SCHEDULE SETS FORTH, WITH
RESPECT TO ALL BUSINESS INTELLECTUAL PROPERTY, A COMPLETE AND ACCURATE LIST OF
ALL UNITED STATES AND FOREIGN PATENTS, TRADEMARKS (INCLUDING INTERNET DOMAIN
NAME REGISTRATIONS AND REGISTERED AND APPLIED FOR TRADEMARKS) AND REGISTERED
COPYRIGHTS, INDICATING FOR EACH, THE APPLICABLE JURISDICTION, REGISTRATION
NUMBER (OR APPLICATION NUMBER) AND DATE ISSUED (OR DATE FILED).
ALL REGISTERED
AND APPLIED FOR TRADEMARKS, PATENTS AND COPYRIGHTS OF EACH SELLER ARE CURRENTLY
IN COMPLIANCE WITH ALL LEGAL REQUIREMENTS (INCLUDING THE TIMELY
POST-REGISTRATION FILING OF AFFIDAVITS OF USE AND INCONTESTABILITY AND RENEWAL
APPLICATIONS WITH RESPECT TO TRADEMARKS, AND THE PAYMENT OF FILING, EXAMINATION
AND MAINTENANCE FEES AND PROOF OF WORKING OR USE WITH RESPECT TO PATENTS), ARE
VALID AND ENFORCEABLE, AND ARE NOT SUBJECT TO ANY MAINTENANCE FEES OR ACTIONS
FALLING DUE WITHIN ONE HUNDRED EIGHTY (180) DAYS AFTER THE CLOSING DATE.
NO
TRADEMARK INCLUDED IN THE BUSINESS INTELLECTUAL PROPERTY ("ACQUIRED TRADEMARKS")
HAS BEEN OR IS NOW INVOLVED IN ANY CANCELLATION PROCEEDING AND, TO THE