Agreement, shall mean a Proceeding
notice of which has been received by either of the Corporations) or, to the
Sellers' Knowledge, threatened Proceeding:
(I)
BY OR AGAINST EITHER CORPORATION, OR
THAT OTHERWISE RELATES TO OR MAY MATERIALLY ADVERSELY AFFECT THE BUSINESS OF, OR
ANY OF THE ASSETS OWNED OR USED BY, EITHER CORPORATION; OR
(II)
THAT CHALLENGES, OR THAT MAY HAVE THE
EFFECT OF PREVENTING, DELAYING, MAKING ILLEGAL OR OTHERWISE INTERFERING WITH,
ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN.
To the Knowledge of the Sellers or the Corporations, no event has occurred or
circumstance exists that is reasonably likely to give rise to or serve as a
basis for the commencement of any such Proceeding.
The Corporations have made
available to the Buyer copies of all pleadings, correspondence and other
documents relating to each Proceeding listed in Schedule 4.11.
(B)
EXCEPT AS SET FORTH IN SCHEDULE 4.11:
(I)
THERE IS NO ORDER TO WHICH THE
CORPORATIONS, THEIR BUSINESS OR ANY OF THE CORPORATIONS ' ASSETS IS SUBJECT; AND
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(II)
NO OFFICER, DIRECTOR, AGENT OR EMPLOYEE OF
THE CORPORATIONS IS SUBJECT TO ANY ORDER THAT PROHIBITS SUCH OFFICER, DIRECTOR,
AGENT OR EMPLOYEE FROM ENGAGING IN OR CONTINUING ANY CONDUCT, ACTIVITY OR
PRACTICE RELATING TO THE BUSINESS OF THE CORPORATIONS.
(C)
EXCEPT AS SET FORTH IN SCHEDULE 4.11:
(I)
THE CORPORATIONS ARE, AND, AT ALL TIMES
SINCE DECEMBER 31, 2002, HAVE BEEN IN COMPLIANCE WITH ALL OF THE TERMS AND
REQUIREMENTS OF EACH ORDER TO WHICH IT OR ANY OF THE CORPORATIONS' ASSETS IS OR
HAS BEEN SUBJECT;
(II)
TO SELLERS' KNOWLEDGE, NO EVENT HAS
OCCURRED OR CIRCUMSTANCE EXISTS THAT IS REASONABLY LIKELY TO CONSTITUTE OR
RESULT IN (WITH OR WITHOUT NOTICE OR LAPSE OF TIME) A VIOLATION OF OR FAILURE TO
COMPLY WITH ANY TERM OR REQUIREMENT OF ANY ORDER TO WHICH THE CORPORATIONS OR
ANY OF THE CORPORATIONS ASSETS ARE SUBJECT; AND
(III)
THE CORPORATIONS HAVE NOT RECEIVED, AT ANY
TIME SINCE DECEMBER 31, 2002, ANY NOTICE OR OTHER COMMUNICATION (WHETHER ORAL OR
WRITTEN) FROM ANY GOVERNMENTAL BODY OR ANY OTHER PERSON REGARDING ANY ACTUAL OR
ALLEGED VIOLATION OF, OR FAILURE TO COMPLY WITH, ANY ORDER TO WHICH THE
CORPORATIONS OR ANY OF THE CORPORATIONS' ASSETS IS OR HAS BEEN SUBJECT.
SECTION 4.12
INTELLECTUAL PROPERTY.
(A)
EXCEPT AS SET FORTH IN SCHEDULE 4.12(A), ALL
OF THE CORPORATIONS' INTELLECTUAL PROPERTY IS VESTED IN AND BENEFICIALLY OWNED
BY THE CORPORATIONS FREE AND CLEAR OF ANY ENCUMBRANCES.
EXCEPT AS DISCLOSED IN
SCHEDULE 4.12(A), THE CORPORATIONS HAVE NO INTELLECTUAL PROPERTY REGISTERED WITH
ANY GOVERNMENTAL BODY.
(B)
EXCEPT AS SET FORTH IN SCHEDULE 4.12(B), THE
CORPORATIONS HAVE NOT GRANTED ANY LICENSE UNDER ANY OF THE INTELLECTUAL PROPERTY
TO ANY OTHER PERSON.
(C)
EXCEPT AS SET FORTH IN SCHEDULE 4.12(C),
THE CORPORATIONS DO NOT REQUIRE A LICENSE OR RIGHT UNDER OR IN RESPECT OF ANY
INTELLECTUAL PROPERTY OF ANY OTHER PERSON TO CONDUCT THEIR BUSINESS AS IT IS
CONDUCTED AS OF THE DATE OF THIS AGREEMENT AND NO SUBSTANTIAL PART OF THE
BUSINESS IS CARRIED