TO THE
KNOWLEDGE OF SELLER, BY BUYER;
(J)
AGREEMENT UNDER WHICH ANY MEMBER OF THE SELLER GROUP OR, IN EACH CASE,
ITS OFFICER, DIRECTOR, OR EMPLOYEE IS RESTRICTED FROM SELLING, LICENSING OR
OTHERWISE DISTRIBUTING ANY PRODUCTS OR SERVICES RELATED TO THE PRODUCTS TO,
CUSTOMERS OR POTENTIAL CUSTOMERS OR ANY CLASS OF CUSTOMERS IN ANY GEOGRAPHIC
AREA, DURING ANY PERIOD OF TIME OR IN ANY SEGMENT OF THE MARKET;
(K)
ANY AGREEMENT INCLUDED IN THE ASSETS WHICH IS NOT TERMINABLE WITHOUT
PENALTY ON THREE (3) MONTHS' OR FEWER DAYS' NOTICE, PROVIDING FOR PAYMENTS
INDIVIDUALLY OR IN THE AGGREGATE IN EXCESS OF $200,000;
(L)
OTHER THAN THIS AGREEMENT, ANY AGREEMENT FOR THE ACQUISITION OR
DISPOSITION OF ASSETS RELATED TO THE BUSINESS ENTERED INTO IN THE LAST THREE (3)
YEARS, OTHER THAN IN THE ORDINARY COURSE OF BUSINESS; AND
(M)
AGREEMENT (EXCEPT AS OTHERWISE SET FORTH IN (A) THROUGH (L) ABOVE), OTHER
THAN IN THE ORDINARY COURSE OF BUSINESS THAT IS MATERIAL TO THE BUSINESS.
Except as set forth on Schedule 3.12 of the Disclosure Schedules, all such
agreements are valid, binding and enforceable in accordance with their terms and
Seller Group is not in default under any of the aforesaid agreements (to the
extent any such default could reasonably be expected to have a material effect
on the Seller Groups' rights, obligations or remedies pursuant to such
agreement), and, to the Knowledge of Seller, no other party is in default under
any of the aforesaid agreements.
Seller Group has provided Buyer with access to
true and complete copies of each agreement, contract and commitment identified
on Schedule 3.12 of the Disclosure Schedules that is not subject to a
confidentiality agreement limiting its disclosure.
SECTION 3.13 TAXES
Except as set forth on Schedule 3.13:
(A)
THE MEMBERS OF THE SELLER GROUP HAVE DULY FILED ALL TAX RETURNS RELATED TO
THE BUSINESS THAT ARE REQUIRED TO BE FILED AND HAVE DULY PAID OR CAUSED TO BE
DULY PAID IN FULL OR MADE PROVISION IN ACCORDANCE WITH GAAP (OR THERE HAS BEEN
PAID OR PROVISION HAS BEEN MADE ON THEIR BEHALF) FOR THE PAYMENT OF ALL TAXES
(AS HEREINAFTER DEFINED) RELATED TO THE BUSINESS THAT ARE OWED (WHETHER OR NOT
SHOWN ON ANY TAX RETURNS) FOR ALL
20
PERIODS OR PORTIONS THEREOF ENDING ON OR PRIOR TO THE CLOSING DATE.
ALL SUCH
TAX RETURNS ARE CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS AND ACCURATELY
REFLECT ALL LIABILITY FOR TAXES FOR THE PERIODS COVERED THEREBY.
(B)
THERE ARE NO LIENS FOR TAXES ON THE ASSETS OR THE BUSINESS OTHER THAN
PERMITTED ENCUMBRANCES.
TO THE KNOWLEDGE OF SELLER, THERE IS NO BASIS FOR THE
ASSERTION OF ANY CLAIM RELATING TO OR ATTRIBUTABLE TO THE TAXES WHICH, IF
ADVERSELY DETERMINED, WOULD RESULT IN ANY LIEN UPON ANY OF THE ASSETS OR THE
BUSINESS.
(C)
SINCE THE DATE OF THE REFERENCE BALANCE SHEET, THE MEMBERS OF THE SELLER
GROUP HAVE NOT MADE ANY CHANGE IN ACCOUNTING METHODS, RECEIVED A RULING FROM ANY
TAXING AUTHORITY OR SIGNED AN AGREEMENT