ASSET PURCHASE AGREEMENT

Exhibit 2.1

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (the “Agreement” ) is entered into as of August 29, 2008, by and between Renaissance Electronics Corp., a Massachusetts corporation and HXI, LLC, a Massachusetts limited liability company (collectively the “Buyer” ), Proxim Wireless Corporation, a Delaware corporation (“ Proxim ”), and Terabeam Corporation, a Washington corporation (the “Seller” ).  The Buyer and the Seller are together sometimes referred to herein as the “Parties.”

WHEREAS, the Seller is engaged in the business of the manufacture and supply of millimeter wave components and subsystems for communication and other systems;

WHEREAS, the Seller wishes to sell to the Buyer, and the Buyer wishes to acquire and purchase from the Seller, the Acquired Assets (as defined herein), on the terms and conditions of this Agreement;

WHEREAS, the Seller is a wholly owned subsidiary of Proxim;

NOW, THEREFORE, in consideration of the respective representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.       Definitions.   In addition to other terms defined elsewhere in this Agreement, when used herein, the following terms shall have the following meanings:

“Affiliate” means, with respect to any Person, any Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control,” “controlled by” and “under common control with” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Assumed Contracts” means the Real Property Lease, the Operating Agreements, and the Sales Representative Agreements.

“ Business”   means the Seller’s business now being conducted at its manufacturing plant located in Haverhill, Massachusetts and identified with the manufacture and supply of the  Harmonix (HXI) millimeter wave components and subsystems for communication and other related systems.

“ Business Intellectual Property” means all:  (A) patents, patent applications and invention disclosures; (B) trademarks, service marks, trade dress, trade names, logos, slogans, jingles and registrations and applications for registration thereof; (C) copyrights and registrations and applications for registrations thereof; (D) mask works and registrations and applications for registrations thereof; (E) trade secrets and confidential business information and know-how, including business and marketing plans, customer and supplier lists, specifications, designs and technical data; (F) internet domain names and the registrations relating thereto (specifically excluding the domain name www.terabeam-hxi.com); (G) any and all custom and other

 

 

computer software programs, applications, generated databases, backups, and other work product; (H)  engineering notebooks, drawings, and bills of materials; and, (I) all licenses, agreements or permissions to use any of the foregoing Business Intellectual Property; in each case of the Seller used exclusively in the Business and to the extent not included as an Excluded Asset.

“Business Material Adverse Effect” means a material adverse effect on, or a material adverse change to, Acquired Assets.

“Code” means the Internal Revenue Code of 1986, as amended.

“GAAP” means United States generally accepted accounting principles as in effect from time to time.

“Governmental Body” means mean any nation, territory or government (or union thereof), foreign, domestic or multinational, any state, local or other political subdivision thereof, and any bureau, court, tribunal, board, commission, department, agency or other entity exercising executive, legislative, judicial, regulatory or administrative functions of government.

 “Knowledge” : For purposes of this Agreement, an individual will be deemed to have “Knowledge” of a particular fact or other matter if such individual is actually aware of or reasonably could be expected to discover or otherwise become aware of such fact or matter in the course of performing his or her normal employment duties.   A person (other than an individual) will be deemed to have “Knowledge” of a particular fact or other matter if any individual who is serving as a director, officer, or manager of such person (or in any similar capacity) has Knowledge of such fact or other matter.

“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body.

“Lien” means any mortgage, pledge, lien, security interest, collateral assignment, charge, encumbrance, or restriction on transfer, whether relating to any property or right or the income or profits therefrom; provided , however , that the term “Lien” shall not include (i) statutory or common law liens to secure landlords, lessors or renters under leases or rental agreements confined to the premises rented, and (ii) deposits with third parties made in connection with, or to secure payment of, workers’ compensation, unemployment insurance, old age pension or other social security programs mandated under applicable Laws .

“Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Body.

“ Premises”   means the manufacturing facility located in Haverhill, Massachusetts and leased to Seller or it predecessor.

“ Products ” mean the items manufactured by Seller as part of the Business including those Products set forth on Schedule 1.

 

 

“Proxim” means the Seller’s parent corporation, Proxim Wireless Corporation.

“Tax” or “Taxes” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including Taxes under Code § 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar, including FICA), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax.

“Tax Return” shall mean any return, filing, questionnaire, information return, election or other document required or permitted to be filed, including requests for extensions of time, filings made with respect to estimated tax payments, claims for refund and amended returns that may be filed, for any period with any Tax authority (whether domestic or foreign) in connection with any Tax (whether or not a payment is required to be made with respect to such filing).

2.       Purchase and Sale of Assets .

2.1            Acquired Assets.   At the Closing, the Seller shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase, acquire and accept from the Seller, subject to and upon the terms and conditions of this Agreement, free and clear of any Lien (except for the Assumed Liabilities), all of the right, title and interest of the Seller in and to all of the assets and properties of the Seller used exclusively in the Business and located at the Seller’s location in Haverhill, Massachusetts, including, without limitation, the following assets and properties (collectively, the “Acquired Assets” ) but excluding the Excluded Assets:

(a)           All Products, machinery, equipment, tooling, and other fixed tangible assets of the Seller listed on Schedule 2.1(a) (collectively, the “Tangible Assets” ), including all such assets on the Premises on the date of the Closing;

(b)           All raw material, work in process, and finished product inventory of the Seller listed on Schedule 2.1(b) (collectively, the “Inventory” );

(c)           All Business Intellectual Property,

(d)           All rights of the Seller and its Affiliates under the real property lease identified on Schedule 2.1(d) (the “Real Property Lease” );

(e)           All rights of the Seller under all purchase orders, order backlog, supply, manufacturing, OEM, sourcing and distribution agreements with suppliers and customers listed on Schedule 2.1(e) , including all rights to the revenue therefrom paid by the customer after the Closing (subject to Section 2.2(b) below), and all rights of the Seller under all supplier and customer purchase orders relating exclusively to the Business, including those listed on Schedule 2.1(e) (collectively, the “Operating Agreements” ) (except to the extent any such rights are designated as Excluded Assets);

(f)           All rights of the Seller under all agreements with independent sales representatives listed on Schedule 2.1(f) (collectively, “Sales Representative Agreements” );

 

 

(g)           All rights of the Seller relating to the FCC and Industry Canada certifications relating to the GigaLink radios as listed on Schedule 2.1(g) ;

(h)           All prepaid expenses of the Seller relating exclusively to the Business set forth on Schedule 2.1(h) ;

(i)           All customer lists, files and records that are located at the Seller’s premises in Haverhill, Massachusetts; provided , however , that the Seller shall be entitled to retain copies of all such materials and that the Buyer shall make all such materials available for inspection and copying by the Seller or its Affiliates after the Closing, as more fully set forth in Section 6.3(b);

(j)           The telephone, facsimile and other communication lines and numbers, and the Internet domain names, as listed on Schedule 2.1(j) ; and

(k)           All of the Seller’s books and records related exclusively to the Acquired Assets; provided , however , that the Seller shall be entitled to retain copies of all such materials and that the Buyer shall make all such books and records available for inspection and copying by the Seller and its Affiliates after the Closing, as more fully set forth in Section 6.3(b).

2.2            Excluded Assets.   Notwithstanding anything to the contrary herein contained, there shall be excluded from the Acquired Assets to be sold, assigned, transferred, conveyed and delivered to the Buyer hereunder, and shall be retained by and remain the property of the Seller, all of the following assets, properties and rights (collectively, the “Excluded Assets” ):

(a)           All cash, cash equivalents, bank accounts, deposits and any other similar assets;

(b)           All accounts receivable arising through the Closing (subject to Section 2.5(b) below) for Product shipped prior to Closing and all payments by customers relating to those accounts receivable;

(c)           All Tax prepayments and refunds;

(d)           All business, financial and accounting records in the possession (in any form or media) of any of the Seller’s Affiliates, including Proxim; provided , however , that the Seller and its Affiliates shall make all such books and records available for inspection and copying by the Buyer after the Closing, as more fully set forth in Section 6.3(a).

(e)           All documents, instruments and materials relating to the organization of the Seller, including Articles of Incorporation, Bylaws, agreements and subscriptions relating to the acquisition of (or to rights to acquire) any ownership or other interests in the Seller, minute books, and ownership records;

(f)           Any rights in connection with United States patent US006700549B2 (it being understood however that the Buyer shall be granted a license for such patent pursuant to the patent license agreement with Proxim referred to in Section 6.5(a));

 

 

(g)           All right, title and interest in, including rights to all proceeds of, all policies of insurance held by the Seller;

(h)           All rights under this Agreement and the other agreements, instruments and documents contemplated to be executed and delivered hereunder;

(i)           All assets, properties and rights of the Seller and its Affiliates not expressly designated as Acquired Assets; and

(j)           All rights, causes of action and claims (known or unknown, matured or unmatured, accrued or contingent) against third parties, including all warranties, representations, guarantees and other contractual claims (express, implied or otherwise) that relate to the Excluded Assets and the Excluded Liabilities.

(k)           All warranty obligations of Seller for Products sold prior to the Closing; provided, however, that Buyer will service such warranty claims upon Proxim’s request in accordance with the relevant provisions (Section 5.8 and Schedule A) of the OEM Agreement contemplated in Section 6.4 below.

2.3            Assumption of Liabilities.   On the terms and subject to the conditions of this Agreement, and except as contemplated by Section 2.4, at the Closing, the Buyer will assume and hereby agrees to satisfy, perform and discharge when due, all indebtedness, liabilities and obligations of any nature, kind, character or description whatsoever, relating to the operation of the Business and the ownership, possession and operation of the Acquired Assets, arising or occurring on or after the Closing (collectively, the “Assumed Liabilities” ), including the following:

(a)           All liabilities and obligations arising after the Closing under the Assumed Contracts;

(b)           All liabilities in connection with the fulfillment and performance of all purchase orders not fully fulfilled and performed by the Seller as of the Closing;

(c)           The Assumed Employee Liabilities (as that term is defined in Section 6.7(b) below); and

(d)           All liabilities with respect to payment of commissions payable to the Seller’s independent sales representatives as of the Closing to the extent any such commission (i) arises out of a written Sales Representative Agreement listed on Schedule 2.1(f) , and (ii) relates to the unshipped portions of purchase orders that are Assumed Contracts.

2.4            No Assumption of Other Liabilities.   The Buyer will not assume or perform any liabilities and obligations not specifically contemplated by Section 2.3 to be assumed by the Buyer (the “Excluded Liabilities” ).

2.5            Purchase Price

 

 

(a)           On the terms and subject to the conditions of this Agreement, in consideration for the Acquired Assets the Buyer shall pay the Seller $5,500,000 (the “Base Purchase Price” ), of which (i) $4,750,000 shall be paid in cash at the Closing by wire transfer of immediately available funds to an account designated by the Seller and (ii) $750,000 shall be paid by the Buyer in the form of a credit toward the purchase of Products as defined in the Original Equipment Manufacturer Agreement and in accordance with its terms, to be executed and delivered by the parties thereto at the Closing.  The Base Purchase Price shall be subject to adjustment pursuant to Section 2.5(b) and 2.5(c) below.  The Base Purchase Price plus or minus, as the case may be, the adjustment amount calculated pursuant to those sections, is referred to herein as the “Purchase Price.”

(b)           The Base Purchase Price, and the amount of cash payable to the Seller pursuant to Section 2.5(a)(i) above, shall be reduced by one-half (1/2) of the Assumed Employee Liabilities (as that term is defined in Section 6.7(b) below).

(c)           The Base Purchase Price, and the amount of cash payable to the Seller pursuant to Section 2.5(a)(i) above, shall be reduced by the amount of advance deposits or prepayments made by customers of Seller on open purchase orders comprising Operating Agreements attributed to Products to be delivered to the customer following the closing.  So as to remove doubt, one customer of the Business pays one third of the amount of the total amount of a purchase order when the order is placed, and the payments billed to that customer upon delivery are reduced by a pro rata portion of the prepaid deposit.  Buyer shall receive a credit against the Base Purchase Price equal to the amount of said prepaid deposit.

2.6             Allocation of Purchase Price .  Prior to the  Closing Date, the Buyer shall prepare and deliver to the Seller copies of Form 8594 and any required exhibits thereto (collectively, the “ Asset Allocation Statement ”) allocating the Purchase Price (including Assumed Liabilities) among the Acquired Assets in accordance with Section 1060 of the Internal Revenue Code and the Treasury regulations thereunder.  The Seller shall have a period of thirty (30) days after delivery of the Asset Allocation Statement (the “ Allocation Response Period ”) to present in writing to the Buyer notice of any objections the Seller may have to the allocations set forth therein (an “ Allocation Objection Notice ”).  Unless the Seller objects within such thirty (30) day period, the Asset Allocation Statement shall be binding on the Parties.  If the Seller shall raise any objections within the Allocation Response Period, the Buyer and the Seller shall negotiate in good faith and use their commercially reasonable efforts to resolve such dispute.  If the parties fail to agree within fifteen (15) days after the delivery of the Allocation Objection Notice, then the parties shall submit the Asset Allocation Statement and the Allocation Objection Notice to an independent accountant for resolution.  Such accountant shall resolve the dispute by selecting the proposed allocation submitted by either the Buyer or the Seller which in the sole judgment of such accountant most accurately allocates the Purchase Price and the Assumed Liabilities among the Acquired Assets in accordance with their relative fair market values, but not by choosing any other formulation.  Such accountant shall render such decision and report to the Buyer and the Seller in writing, specifying the reason for its decision in reasonable detail, not later than thirty (30) days after the item has been referred to it.  The costs, fees and expenses of the accountant shall be borne equally by the Buyer and the Seller.  The Purchase Price shall be allocated in accordance with the Asset Allocation Statement, as finally

 

 

determined, and all income tax returns and reports filed by the Buyer and the Seller shall be prepared consistently with such allocation.

2.7            Sales and Transfer Taxes .  All sales, use, VAT, stamp duty, recording, documentary and transfer taxes, fees and duties under applicable Law incurred in connection with this Agreement and the transactions contemplated hereby, including the sale and transfer of the Acquired Assets, will be borne and paid by the Buyer (except for any taxes on the income of the Seller due to the transactions contemplated by this Agreement).

2.8            Prorations .  All personal property taxes, or ad valorem obligations and similar recurring taxes and fees on the Acquired Assets for taxable periods beginning before, and ending after, the Closing Date, shall be prorated between the Buyer and the Seller as of 12:01 a.m. eastern time on the Closing Date.  With respect to the taxes described in this Section 2.8, the Seller shall timely file all tax returns due before the Closing Date with respect to such taxes and the Buyer shall prepare and timely file all tax returns due after the Closing Date with respect to such taxes.  If one party remits to the appropriate taxing authority payment for taxes, which are subject to proration under this Section 2.8 and such payment includes the other party’s share of such taxes, such other party shall promptly reimburse the remitting party for its share of such taxes.

3.       The Closing; Deliveries at Closing .

3.1            The Closing .  The closing of the transactions contemplated by this Agreement (the “Closing” ) shall take place simultaneously with the execution and delivery of this Agreement on the date set forth in the first paragraph of this Agreement (the “Closing Date” ), at the offices of the Seller located at 22 Parkridge Road, Haverhill, Massachusetts.

3.2            Deliveries at the Closing .

(a)           The transfer of the Acquired Assets by the Seller to the Buyer, and assumption by the Buyer of the Assumed Liabilities at the Closing, shall be effected by the delivery of the following by the Seller:

(i)           a bill of sale for the Acquired Assets,

(ii)           an assignment and assumption of lease agreement signed by the lessor of the Real Property Lease or consent of the lessor in form acceptable to Buyer;

(iii)           patent and trademark assignments in recordable form;

(iv)           votes of the Shareholder and Board of Directors of the Seller authorizing the acts contemplated by this Agreement in form acceptable to Buyer;

(v)           Certificate of Tax Good Standing from the Commonwealth of Massachusetts and evidence of a request for a Waiver of Tax Lien from the Commonwealth of Massachusetts;

 

 

(vi)           Seller shall have delivered to Buyer UCC Termination Statements for UCC Financing Statements on file with the State of Washington (for Seller) (or confirmations that such termination statements have previously been filed with the State of Washington) and State of Delaware (for Proxim) with respect to the Acquired Assets, or a release and waiver of lien from the holders of such UCC Financing Statements or a commitment from the lien holder to promptly file a partial release after the Closing;

(vii)           Certificate of Corporate Good Standing from the Secretary of State of the Commonwealth of Massachusetts;

(viii)          such other instruments of transfer and assignment and other documents (including any consents thereto by third parties necessary to make the same valid and effective), in such form and containing such terms and provisions as the Parties may reasonably request, as shall be necessary to vest in the Buyer all right, title and interest in and to the Acquired Assets and as shall be necessary for the Buyer to assume all of the Assumed Liabilities.

(ix)           At the Closing, the Seller shall put the Buyer in possession and control of the Acquired Assets.

(b)           At the Closing, the Buyer shall deliver the funds contemplated in Section 2.5(a) above as contemplated therein and shall deliver an assignment and assumption agreement relating to the Assumed Contracts.

4.       Representations and Warranties of the Sellers.   The Seller and Proxim hereby represent and warrant to the Buyer that, except as set forth in the disclosure letter delivered contemporaneous herewith (the “ Disclosure Letter ”):

4.1            Organization of the Seller .

(a)           The Seller is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Washington.  The Seller is qualified to do business and is in good standing as a foreign corporation in the Commonwealth of Massachusetts.

(b)           Copies of the Articles of Incorporation and Bylaws of the Seller, each as amended to date, have been heretofore delivered to the Buyer and are accurate and complete.  The Seller is not in violation of any of the material provisions of its Articles of Incorporation or Bylaws.

4.2            Authorization of Transaction.   The Seller has the corporate power and authority to execute and deliver this Agreement and all other agreements, instruments and documents required to be executed or delivered by the Seller hereunder, and to perform the Seller’s obligations hereunder and thereunder and consummate the transactions contemplated hereby and thereby.  All corporate actions required to be taken by or on the part of the Seller to authorize and permit the execution and delivery by the Seller of this Agreement and the other agreements, instruments and documents required to be executed and delivered by the Seller hereunder, the performance by the Seller of its obligations hereunder and thereunder, and the consummation by the Seller of the transactions contemplated hereby and thereby, have been duly

 

 

and properly taken.  This Agreement and the other agreements, instruments and documents executed and delivered by the Seller hereunder have been duly executed and delivered by the Seller, and constitute the legal, valid and binding obligations of the Seller, enforceable against the Seller in accordance with their respective terms and conditions, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Law relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity (whether considered in a proceeding at law or in equity).

4.3            Noncontravention; Consents.   Neither the execution and the delivery of this Agreement and the other agreements, instruments and documents required to be executed and delivered by the Seller pursuant hereto, nor the consummation of the transactions contemplated hereby and thereby, will (i) violate the Articles of Incorporation or Bylaws of the Seller, (ii) violate any Law, injunction, judgment, or order of any Governmental Body, to which the Seller or any of the Acquired Assets is subject, except as would not reasonably be expected to have a Business Material Adverse Effect, or (iii) to the Knowledge of Seller, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any material Assumed Contract, in each case except as would not reasonably be expected to result in a Business Material Adverse Effect.  To the Knowledge of the Seller, no consent, permit, license, approval, order or authorization of, or registration, declaration or filing with, any Governmental Body or any other Person (collectively, the “Consents” ) is required for the Seller in connection with the execution, delivery and performance by the Seller of this Agreement or any other agreement, instrument or document contemplated to be executed and delivered by the Seller hereunder, or the consummation by the Seller of the transactions contemplated hereby and thereby, and the Seller has obtained all such Consents prior to the date hereof, except for Consents the failure of which to be obtained would not reasonably be expected to result in a Business Material Adverse Effect.

4.4            Title to and Condition of the Acquired Assets .

(a)           The Seller owns and has good and marketable title to, or, in the case of leased assets and properties, valid leasehold interests in, all of the tangible Acquired Assets, free and clear of any Lien except for the Assumed Liabilities.  No person, firm or corporation other than Seller has any right to the use or possession of any of the Assets. No currently effective financing statement under the Uniform Commercial Code with respect to any of the Acquired Assets has been filed in any jurisdiction; no currently effective lien or encumbrance with respect to any of the Acquired Assets has been filed with the United States Patent and Trademark Office; and no agent of Seller has signed any financing statement or security agreement authorizing anyone to file any financing statement, lien or other encumbrance.    To the Knowledge of the Seller, the Tangible Assets are in good operating condition and repair, ordinary wear and tear excepted.

(b)            The Seller owns no real property.  The premises leased by the Seller or its Affiliates under the Real Property Lease, and all fixtures and improvements thereto, are in good operating condition and repair, ordinary wear and tear excepted.

 

 

(c)           The Inventory consists of a quality and quantity which are usable within customary time periods in the ordinary course of the Business consistent with past practice .  The Inventory consisting of work-in-process is being completed on schedule and there are no forfeitures, chargebacks or penalties which have been or will be incurred due to the failure of Seller to complete the work-in-progress in a timely manner.   None of the Inventory has been consigned to others, nor is any inventory consigned to Seller, other than inventory which has been fully paid for by customers but is being temporarily stored by Seller (“Customer Inventory”).  The Inventory is sufficient and adequate for, but are not in excess of the level appropriate to, the customary conduct of the Business as it previously has been conducted.

4.5            Financial Statements.   The Buyer acknowledges that the Seller and its Affiliates do not have and have not maintained separate financial statements for the Seller or the Business.  The Seller has provided the Buyer copies of (a) pro forma, unaudited selected balance sheet account information (inventory, fixed assets, accounts receivable, accounts payable, and selected liability accounts) of the Seller relating just to the Business as of June 30, 2008, and a related pro forma, unaudited statement of income for the three months period then ended, and (b)  pro forma, unaudited selected balance sheet account information (inventory, fixed assets, accounts receivable, accounts payable, and selected liability accounts) of the Seller relating just to the Business as of December 31, 2007, and a related pro forma, unaudited statement of income for the year then ended.  The financial statements referred to in clauses (a) and (b) above, are hereinafter referred to as the “Financial Statements.”   The Financial Statements have been prepared based on the books and records of Proxim and the Seller in accordance with GAAP applied on a consistent basis throughout the periods covered thereby and present fairly the financial condition of the Seller relating just to the Business as of such dates and the results of operations of the Seller relating just to the Business for such periods, in each case to the extent applicable to the limited financial information described above as contained in the Financial Statements..

4.6            Absence of Changes .  Since June 30, 2008, the Acquired Assets, taken as a whole, have not undergone any material adverse change in their condition or suffered any material damage, destruction or loss (whether or not covered by insurance), and there has been no Business Material Adverse Effect.

4.7            Tax Matters .

(a)           The Seller or an Affiliate of the Seller has timely filed with the appropriate Tax authorities all material Tax Returns required to have been filed by the Seller with respect to the Acquired Assets, such tax Returns were accurate and complete in all material respects, and the Seller has paid all material Taxes due as reflected on said Tax Returns.  There is no pending dispute with any Tax authority relating to any Tax Return of the Seller with respect to the Acquired Assets which, if determined adversely to the Seller, would result in the assertion by any Tax authority of any valid material Tax deficiency.  There are no Tax liens on any of the Acquired Assets.

(b)           Since June 23, 2004, the Seller has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, customer, creditor, or stockholder.

 

 

(c)           Section 4.7(c) of the Disclosure Letter lists the jurisdictions in which Seller files or is required to file any tax returns relating to the Business or the Acquired Assets.  No communication has been received by Seller from any state taxing authority (including foreign states) requesting information concerning the extent of either of the Seller’s nexus with such state or asserting that such Seller has such nexus so as to impose such state’s taxing jurisdiction on such Seller or a tax lien with respect to the sale of assets contemplated by this Agreement, and the Seller has no nexus with any state in which it does not currently file tax returns which would allow such state to impose its taxing jurisdiction on such Seller.

4.8            Compliance with Laws.   To the Knowledge of the Seller, the Seller is, and since June 23, 2004 has been, in compliance with all Laws applicable to the Seller with respect to the ownership and operation of the Business, except where the failure to so comply would not have a Business Material Adverse Effect.

4.9            Permits.   A true and complete list of all material licenses, permits, authorizations, registrations, certificates or approvals issued to the Seller by any Governmental Body in connecti