ANY TAXABLE PERIOD WILL NOT EXCEED THE AGGREGATE TAXES THAT WOULD HAVE BEEN
PAYABLE BY THEM WITH RESPECT TO SUCH PERIOD HAD NO OPTION CONSIDERATION BEEN
PAID (FOR THE AVOIDANCE OF DOUBT, TAX LIABILITY SHALL BE DETERMINED AFTER TAKING
INTO ACCOUNT NOLS WITH RESPECT TO TAXABLE PERIODS ENDING ON OR BEFORE THE
CLOSING DATE BEING PROPERLY CARRIED FORWARD OR BACK); PROVIDED, HOWEVER, THAT
ANY SUCH EXCESS WITH RESPECT TO A TAXABLE PERIOD BEGINNING AFTER THE DATE HEREOF
SHALL NOT BE TAKEN INTO ACCOUNT TO THE EXTENT SUCH EXCESS WOULD NOT HAVE
OCCURRED BUT FOR THE NOLS CARRIED OVER OR BACK TO SUCH PERIOD BEING LESS THAN
THE NOLS THAT PROPERLY COULD HAVE BEEN CARRIED OVER OR BACK TO SUCH TAXABLE
PERIOD HAD NO OPTION CONSIDERATION BEEN PAID; PROVIDED, FURTHER, THAT ANY SUCH
EXCESS SHALL BE COMPUTED BY ASSUMING THAT THE NET OPERATING LOSSES WITH RESPECT
TO TAXABLE PERIODS ENDING ON OR BEFORE THE CLOSING DATE FOR WHICH OPTIONEE FILES
THE TAX RETURNS OF THE COMPANY ARE CARRIED BACK TO TAXABLE PERIODS ENDING ON OR
BEFORE THE CLOSING DATE TO THE EXTENT THEY MAY PROPERLY BE SO CARRIED BACK.
3.8.
AVAILABILITY OF ASSETS.
(A)
EXCEPT AS SET FORTH IN SCHEDULE 3.8 AND
EXCEPT FOR THE IDENTIFIED IP, THE ASSETS AND PROPERTIES OWNED, LEASED OR
LICENSED BY THE COMPANY AND THE SUBSIDIARIES CONSTITUTE ALL THE ASSETS AND
PROPERTIES USED IN OR NECESSARY FOR THE OPERATION OF THEIR BUSINESS (INCLUDING
ALL BOOKS, RECORDS, COMPUTERS AND COMPUTER PROGRAMS AND DATA PROCESSING SYSTEMS)
AS PRESENTLY CONDUCTED IN ALL MATERIAL RESPECTS, ARE, IN THE CASE OF TANGIBLE
ASSETS, IN GOOD AND SERVICEABLE CONDITION (SUBJECT TO NORMAL WEAR AND TEAR) AND
ARE SUITABLE FOR THE USES FOR WHICH INTENDED.
(B)
SCHEDULE 3.8 SETS FORTH A DESCRIPTION OF ALL
MATERIAL SERVICES PROVIDED TO THE COMPANY OR A SUBSIDIARY BY ANY STOCKHOLDER OF
THE COMPANY (OR ANY AFFILIATE OF A STOCKHOLDER OF THE COMPANY) UTILIZING EITHER
(I) ASSETS NOT OWNED BY THE COMPANY OR A SUBSIDIARY OR (II) EMPLOYEES NOT LISTED
IN SCHEDULE 3.15(F), AND THE MANNER IN WHICH THE COSTS OF PROVIDING SUCH
SERVICES HAVE BEEN CHARGED TO THE COMPANY OR SUCH SUBSIDIARY.
23
3.9.
GOVERNMENTAL PERMITS; REGULATORY MATTERS.
(A)
THE COMPANY AND THE SUBSIDIARIES OWN, HOLD
OR POSSESS ALL MATERIAL LICENSES, FRANCHISES, PERMITS, PRIVILEGES, IMMUNITIES,
APPROVALS AND OTHER AUTHORIZATIONS FROM GOVERNMENTAL BODIES WHICH ARE NECESSARY
TO ENTITLE THEM TO OWN OR LEASE, OPERATE AND USE THEIR ASSETS AND TO CARRY ON
AND CONDUCT THEIR BUSINESS SUBSTANTIALLY AS CURRENTLY CONDUCTED (COLLECTIVELY,
THE "GOVERNMENTAL PERMITS").
SCHEDULE 3.9 SETS FORTH A LIST AND BRIEF
DESCRIPTION OF EACH GOVERNMENTAL PERMIT.
COMPLETE AND CORRECT COPIES OF ALL OF
THE GOVERNMENTAL PERMITS HAVE HERETOFORE BEEN DELIVERED OR MADE AVAILABLE TO
OPTIONEE.
(B)
EXCEPT AS SET FORTH IN SCHEDULE 3.9:
(I) THE COMPANY AND THE SUBSIDIARIES HAVE FULFILLED AND PERFORMED IN ALL
MATERIAL RESPECTS THEIR RESPECTIVE OBLIGATIONS UNDER EACH OF THE GOVERNMENTAL
PERMITS, AND NO EVENT HAS OCCURRED OR CONDITION OR STATE OF FACTS EXISTS WHICH
CONSTITUTES OR, AFTER NOTICE OR LAPSE OF