definiens: within the meaning of Section 368(a ) of the Code . The parties hereto adopt this Agreement as a within the meaning of Treasury Regulations Secti on 1.368 -2(g ) . Notwithstanding anything herein to the contrary, each of Merger Sub, Parent and the Company shall use commercially reasonable efforts to cause the Merger to qualify, and will not take any actions, or fail to take any action, which could reas onably be expected to prevent the Merger from qualifying as a reorganization under the provisions of Section 368(a ) of the Code . Merger Sub, Parent, the Company and the Surviving Corporation shall report, to the extent required or permitted by the Code or the regulations thereunder, the Merger for United States federal income tax purposes as a reorganization within the meaning of Section of 368(a ) of the Code and shall file all Tax Returns consistent with the foregoing and shall not take any position ( wheth er in audits, Tax Returns or otherwise ) that is inconsistent with such treatment unless required to do so by applicable law