OVER-THE-COUNTER MARKET,
SHALL NOT BE DEEMED TO BE A "FINANCIAL INTEREST" SO LONG AS THE PERSON OWNING
THE SECURITIES HAS NO OTHER CONNECTION OR RELATIONSHIP WITH THE COMPETITOR,
SUPPLIER OR CUSTOMER;
(2)
OWNS, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, OR HAS ANY
OTHER INTEREST IN ANY MATERIAL TANGIBLE OR INTANGIBLE PROPERTY WHICH LITMUS OR
ITS SUBSIDIARIES USES OR HAS USED IN THE CONDUCT OF THE BUSINESS OR OTHERWISE;
OR
(3)
HAS OUTSTANDING ANY INDEBTEDNESS TO LITMUS OR ITS SUBSIDIARIES.
(B)
TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS, LITMUS AND ITS
SUBSIDIARIES HAVE NO INDEBTEDNESS, LIABILITIES OR ANY OTHER OBLIGATION OF ANY
NATURE WHATSOEVER TO, ANY OFFICER, DIRECTOR OR SHAREHOLDER OF LITMUS OR TO ANY
IMMEDIATE FAMILY MEMBER OR SPOUSE WHO RESIDES WITH, OR IS A DEPENDENT OF, ANY
SUCH OFFICER, DIRECTOR OR SHAREHOLDER, EXCEPT AS DISCLOSED TO THK AND LITMUS
ACQUISITION SUB IN THIS AGREEMENT AND/OR THE COMPANY FINANCIAL STATEMENTS.
4.20
LITIGATION.
EXCEPT AS SET FORTH ON SCHEDULE 4.20, THERE ARE NO
ACTIONS PENDING OR, TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS, THREATENED
AGAINST, RELATING TO OR AFFECTING LITMUS OR ITS SUBSIDIARIES OR THE BUSINESS
BEFORE ANY COURT, GOVERNMENTAL AGENCY OR ANY ARBITRATOR OR MEDIATOR.
NEITHER
LITMUS OR ITS SUBSIDIARIES NOR THE SHAREHOLDERS IS SUBJECT TO ANY ORDER,
INCLUDING BUT NOT LIMITED TO ANY ORDER WHICH PROHIBITS OR RESTRICTS THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
4.21
INTELLECTUAL PROPERTY AND WEB SITES.
EXCEPT FOR SOFTWARE, CONTENT,
OR OTHER SIMILAR SERVICES/PROPERTY PURCHASED ON A NON-EXCLUSIVE BASIS THROUGH
CONTRACTS WITH THIRD PARTIES, LITMUS HAS THE EXCLUSIVE RIGHTS, TITLES AND
INTERESTS IN AND TO ANY AND ALL INTELLECTUAL PROPERTY AND ALL OF THE WEB SITES
USED BY OR BEING DEVELOPED BY, OR OTHERWISE ASSOCIATED WITH, THE PRESENT
OPERATIONS OF THE BUSINESS.
27
4.22
ADKNOWLEDGE RELEASE AGREEMENT.
(A)
THE ADKNOWLEDGE RELEASE AGREEMENT, WITH RESPECT TO LITMUS AND THE
SHAREHOLDERS AND TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS WITH RESPECT TO
THE OTHER PARTIES THERETO, IS IN FULL FORCE AND EFFECT AND CONSTITUTES THE
LEGAL, VALID AND BINDING OBLIGATION OF THE PARTIES THERETO, ENFORCEABLE AGAINST
EACH PARTY EXCEPT AS ENFORCEMENT MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS RELATING TO OR AFFECTING CREDITOR
RIGHTS GENERALLY OR BY GENERAL EQUITY PRINCIPLES (REGARDLESS OF WHETHER
ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR AT LAW).
LITMUS AND THE
SHAREHOLDERS AND, TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS, THE NON-PARTY
SHAREHOLDERS, ADKNOWLEDGE AND LYNN ARE NOT IN BREACH OF OR DEFAULT UNDER, AND
HAVE NOT VIOLATED THE TERMS OF, THE ADKNOWLEDGE RELEASE AGREEMENTS.
NOTWITHSTANDING THE STATEMENTS IN THE ADKNOWLEDGE RELEASE AGREEMENT, MELISSA
LINDEN IS NOT A SHAREHOLDER OF LITMUS.
THE LAWSUIT (AS DEFINED IN THE
ADKNOWLEDGE RELEASE AGREEMENT) HAS BEEN DISMISSED BY ADKNOWLEDGE WITH PREJUDICE
AND, TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS, ADKNOWLEDGE HAS NOTIFIED
THE U.S. ATTORNEY'S OFFICE AS REQUIRED BY SECTION 7 OF THE ADKNOWLEDGE RELEASE
AGREEMENT.
(B)
TO THE KNOWLEDGE OF LITMUS AND THE SHAREHOLDERS BASED ON
INFORMATION CONCERNING THK AVAILABLE IN