TO CONDUCT ITS BUSINESS IN THE ORDINARY COURSE IN
SUBSTANTIALLY THE SAME MANNER AS PRESENTLY CONDUCTED AND ON THE CLOSING DATE
SHALL NOT PERMIT THE SOLD COMPANIES, THE VENTURE ENTITIES OR THE SUBSIDIARIES TO
EFFECT ANY EXTRAORDINARY TRANSACTIONS (OTHER THAN ANY SUCH TRANSACTIONS
EXPRESSLY REQUIRED BY APPLICABLE LAW OR PROVIDED FOR OR PERMITTED PURSUANT TO
THIS AGREEMENT) THAT COULD RESULT IN TAX LIABILITY TO THE SOLD COMPANIES, THE
VENTURE ENTITIES OR ANY OF THE SUBSIDIARIES IN EXCESS OF TAX LIABILITY
ASSOCIATED WITH THE CONDUCT OF ITS BUSINESS IN THE ORDINARY COURSE.
55
6.9
Procedures Relating to Indemnification of
Tax Claims.
(A)
IF A CLAIM SHALL BE MADE BY ANY
GOVERNMENTAL AUTHORITY, WHICH, IF SUCCESSFUL, MIGHT RESULT IN AN INDEMNITY
PAYMENT TO THE BUYER OR ITS AFFILIATES PURSUANT TO SECTION 6.5, THE BUYER SHALL
PROMPTLY NOTIFY THE SELLER IN WRITING OF SUCH CLAIM (A "TAX CLAIM").
(B)
WITH RESPECT TO ANY TAX CLAIM, THE SELLER
SHALL CONTROL ALL PROCEEDINGS TAKEN IN CONNECTION WITH SUCH TAX CLAIM (INCLUDING
SELECTION OF COUNSEL) AND, WITHOUT LIMITING THE FOREGOING, MAY IN ITS SOLE
DISCRETION PURSUE OR FOREGO ANY AND ALL ADMINISTRATIVE APPEALS, PROCEEDINGS,
HEARINGS AND CONFERENCES WITH ANY TAXING AUTHORITY WITH RESPECT THERETO, AND
MAY, IN ITS REASONABLE DISCRETION, EITHER PAY THE TAX CLAIMED AND SUE FOR A
REFUND WHERE APPLICABLE LAW PERMITS SUCH REFUND SUITS OR CONTEST THE TAX CLAIM
IN ANY PERMISSIBLE MANNER.
ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH
SUCH PROCEEDINGS SHALL BE BORNE BY THE SELLER.
IN THE EVENT THAT THE SELLER
ELECTS NOT TO CONTROL SUCH PROCEEDINGS, THE BUYER SHALL CONTROL SUCH PROCEEDINGS
AND THE SELLER SHALL BEAR ALL OF THE BUYER'S REASONABLE COSTS AND EXPENSES IN
CONNECTION THEREWITH.
NOTWITHSTANDING THE FOREGOING, THE SELLER AND THE BUYER
SHALL JOINTLY CONTROL ALL PROCEEDINGS TAKEN IN CONNECTION WITH ANY TAX CLAIM
RELATING SOLELY TO TAXES FOR A STRADDLE PERIOD.
NEITHER PARTY SHALL SETTLE A
TAX CLAIM RELATING SOLELY TO TAXES OF THE SOLD COMPANIES OR THE SUBSIDIARIES FOR
A STRADDLE PERIOD WITHOUT THE OTHER PARTY'S PRIOR WRITTEN CONSENT (WHICH CONSENT
MAY NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED; AND WHICH CONSENT
SHALL BE CONSIDERED TO BE UNREASONABLE WITHHELD IF SUCH SETTLEMENT HAS NO
ADVERSE EFFECT ON THE OTHER PARTY).
(C)
THE BUYER AND ITS AFFILIATES (INCLUDING
AFTER THE CLOSING, THE SOLD COMPANIES, THE VENTURE ENTITIES AND THE
SUBSIDIARIES), ON THE ONE HAND, AND THE SELLER AND ITS SUBSIDIARIES, ON THE
OTHER HAND, SHALL COOPERATE WITH EACH OTHER IN CONTESTING ANY TAX CLAIM, WHICH
COOPERATION SHALL INCLUDE, WITHOUT LIMITATION, THE RETENTION AND, AT THE
CONTESTING PARTY'S REQUEST AND EXPENSE, THE PROVISION OF RECORDS AND INFORMATION
WHICH ARE REASONABLY RELEVANT TO SUCH TAX CLAIM, AND MAKING EMPLOYEES AVAILABLE
ON A MUTUALLY CONVENIENT BASIS TO PROVIDE ADDITIONAL INFORMATION OR EXPLANATION
OF ANY MATERIAL PROVIDED HEREUNDER OR TO TESTIFY AT PROCEEDINGS RELATING TO SUCH
TAX CLAIM.
ARTICLE VII
CONDITIONS
7.1
Conditions Precedent to Obligations of the
Buyer and the Seller.
The respective obligations of the Buyer and the Seller to
consummate the transactions contemplated