definiens: within the meaning of Section 368(a ) of the Code for federalincome tax purposes ( a ) . None of the aforementionedparties has taken or will, either before or after consummation of the Merger, take any action which, to the knowledge of such party, would cause, nor will anyof the aforementioned parties fail to perform, or otherwise breach, thisAgreement in any way which would cause, or in either case result in, the Mergerto fail to constitute a Tax - Free Reorganization . Unless otherwise required byLaw, each party shall ( i ) report the Merger on all Tax Returns and filings as aTax - Free Reorganization, and ( ii ) not take any position or action that isinconsistent with the characteristics of the Merger as a Tax - Free Reorganizationin any audit, administrative proceeding, litigation or otherwise Anydetermination as to the impact on the status of the Merger as a Tax FreeReorganization of any action to be taken or omitted to be taken may be made bythe Company prior to Closing and by the Stockholder Representative followingClosing, in either case upon the written advice of counsel or other tax advisor, and upon receipt of such advice, and discussion of such advice with Buyer, theCompany or Stockholder Representative, as the case may be, may waive in whole orin part the application of the terms and provision of this Section as to anyPerson