SCHEDULE 3.11(A) HAVE BEEN EXHAUSTED BY THE PAYMENT OF ANY
CLAIMS THEREUNDER OR OTHERWISE.
(D)
NONE OF THE SOLD COMPANIES OR SUBSIDIARIES
HAVE FAILED TO NOTIFY OR REPORT TO THE APPROPRIATE INSURER UNDER AND IN
ACCORDANCE WITH ANY POLICIES OF INSURANCE APPLICABLE TO SUCH ENTITIES ANY LOSS,
LIABILITY, DAMAGE, CLAIM OR OTHER OCCURRENCE WHICH IT HAS SUFFERED OR MAY SUFFER
AND WHICH MAY BE COVERED THEREUNDER, EXCEPT WHERE THE FAILURE TO SO REPORT OR
NOTIFY WOULD NOT ADVERSELY EFFECT ANY OF THE SOLD COMPANIES' OR SUBSIDIARIES'
RIGHTS UNDER SUCH INSURANCE POLICY.
3.12
Tax Matters.
(A)
CERTAIN DEFINED TERMS.
FOR PURPOSES OF
THIS AGREEMENT, THE FOLLOWING DEFINITIONS SHALL APPLY:
(I)
"CODE" MEANS THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
(II)
"TAX"" AND "TAXES" MEANS ALL TAXES,
CHARGES, FEES, LEVIES, OR OTHER ASSESSMENTS, INCLUDING, WITHOUT LIMITATION,
INCOME, PROFITS, GAINS, GROSS RECEIPTS, NET WORTH, PREMIUM, VALUE ADDED, AD
VALOREM, EXCISE, REAL AND PERSONAL PROPERTY, SALES, USE, STAMP, TRANSFER,
LICENSE, PAYROLL, FRANCHISE, SOCIAL SECURITY, UNEMPLOYMENT AND WITHHOLDING
TAXES, TOGETHER WITH ANY INTEREST, PENALTIES AND ADDITIONS THERETO IMPOSED OR
REQUIRED TO BE WITHHELD BY ANY GOVERNMENTAL AUTHORITY.
(III)
"TAX RETURN" MEANS ANY REPORT, RETURN,
ELECTION, ESTIMATE, DECLARATION, INFORMATION STATEMENT AND OTHER FORMS AND
DOCUMENTS (INCLUDING ALL SCHEDULES, EXHIBITS AND OTHER ATTACHMENTS THERETO OR
AMENDMENTS THEREOF) RELATING TO, AND REQUIRED TO BE FILED WITH ANY GOVERNMENTAL
AUTHORITY IN CONNECTION WITH, ANY TAXES.
26
(B)
TAX RETURNS FILED AND TAXES PAID.
EXCEPT AS
PROVIDED ON SCHEDULE 3.12(B), (I) ALL TAX RETURNS REQUIRED TO BE FILED BY OR ON
BEHALF OF THE SOLD COMPANIES AND THE SUBSIDIARIES HAVE BEEN DULY FILED ON A
TIMELY BASIS AND ALL SUCH TAX RETURNS ARE ACCURATE AND COMPLETE IN ALL MATERIAL
RESPECTS, (II) ALL TAXES DUE (WHETHER OR NOT SHOWN TO BE DUE AND PAYABLE ON SUCH
TAX RETURNS) HAVE BEEN PAID IN FULL ON A TIMELY BASIS OR ADEQUATE RESERVES HAVE
BEEN ESTABLISHED WITH RESPECT TO SUCH TAXES, (III) EACH OF THE SOLD COMPANIES
AND THE SUBSIDIARIES HAS WITHHELD AND PAID OVER ALL TAXES REQUIRED TO HAVE BEEN
WITHHELD AND PAID OVER, AND COMPLIED WITH ALL INFORMATION REPORTING
REQUIREMENTS, IN CONNECTION WITH AMOUNTS PAID OR OWING TO ANY EMPLOYEE,
CREDITOR, INDEPENDENT CONTRACTOR OR OTHER THIRD PARTY FOR ALL PERIODS FOR WHICH
THE STATUTE OF LIMITATIONS HAS NOT EXPIRED AND (IV) THERE ARE NO LIENS ON ANY OF
THE ASSETS OF ANY OF THE SOLD COMPANIES AND THE SUBSIDIARIES WITH RESPECT TO
TAXES, OTHER THAN LIENS FOR TAXES NOT YET DUE AND PAYABLE OR FOR TAXES THAT THE
SOLD COMPANIES, OR THE SUBSIDIARIES ARE CONTESTING IN GOOD FAITH THROUGH
APPROPRIATE PROCEEDINGS AND FOR WHICH APPROPRIATE RESERVES HAVE BEEN
ESTABLISHED.
(C)
DEFICIENCIES; AUDITS; STATUTES OF
LIMITATIONS.
EXCEPT AS SET FORTH ON SCHEDULE 3.12(C): (I) THERE IS NO AUDIT BY
A GOVERNMENTAL AUTHORITY OR TAXING AUTHORITY IN PROCESS OR PENDING WITH RESPECT
TO ANY TAX OWED OR ALLEGED TO BE OWED BY ANY OF THE SOLD COMPANIES, THE VENTURE
ENTITIES AND THE SUBSIDIARIES; (II) NO DEFICIENCIES EXIST OR HAVE BEEN ASSERTED
IN