PURCHASE PRICE PURSUANT THIS SECTION
8.1(A), AS IT MAY BE MODIFIED BY ANY AGREEMENT OF BUYER AND SELLER OR ANY FINAL
DETERMINATION WITHIN THE MEANING OF SECTION 1313(A) OF THE CODE OR CORRESPONDING
PROVISION OF STATE, LOCAL OR FOREIGN INCOME TAX LAW, IS REFERRED TO HEREIN AS
THE "ALLOCATION."
BUYER MAY NOT FILE ANY 338(H)(10) ELECTION THAT DOES NOT
REFLECT THE ALLOCATION, PROVIDED THAT IF BUYER AND SELLER HAVE NOT AGREED ON THE
ALLOCATION BY SEPTEMBER 15, 2007 THAT ALL OPEN ISSUES WITH RESPECT TO THE
ALLOCATION SHALL BE REFERRED TO THE ACCOUNTING FIRM WHOSE DETERMINATION SHALL BE
FINAL.
(B)
TAX RETURNS; COOPERATION ON TAX MATTERS.
BUYER AND SELLER SHALL COOPERATE
FULLY, AS AND TO THE EXTENT REASONABLY REQUESTED BY THE OTHER PARTY, IN
CONNECTION WITH THE FILING OF TAX RETURNS PURSUANT HERETO AND ANY AUDIT,
LITIGATION OR OTHER PROCEEDING WITH RESPECT TO TAXES.
SUCH COOPERATION SHALL
INCLUDE THE RETENTION AND (UPON THE OTHER PARTY'S REQUEST) THE PROVISION OF
RECORDS AND INFORMATION WHICH ARE REASONABLY RELEVANT TO ANY SUCH AUDIT,
LITIGATION OR OTHER PROCEEDING.
SUCH COOPERATION SHALL ALSO INCLUDE
NOTIFICATION OF THE OTHER PARTY OF ANY
40
AUDIT OR OTHER ISSUES, (INCLUDING TAX ALLOCATIONS AND RETURN POSITIONS) THAT MAY
AFFECT THE TAX TREATMENT OF AN ITEM FOR A YEAR RELEVANT TO THAT OTHER PARTY.
WHERE SUCH AUDIT OR OTHER ISSUES, IF SUSTAINED, COULD REASONABLY BE EXPECTED TO
RESULT IN LIABILITY OF SELLER UNDER ARTICLE VII OR OTHER PROVISIONS OF THIS
AGREEMENT, OR ADVERSELY AFFECT THE TAX POSITION OF THE OTHER PARTY, SELLER AND
BUYER SHALL JOINTLY CONTROL AND PARTICIPATE IN SUCH AUDIT AND ANY RELATED
LITIGATION OR OTHER PROCEEDING, AND NO SETTLEMENT WILL BE AGREED UPON WITH ANY
TAXING AUTHORITY NOR TAX ELECTION OR RETURN POSITION TAKEN WITHOUT THE CONSENT
OF SUCH OTHER PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
THE
COMPANY AND SELLER AGREE (I) TO RETAIN ALL BOOKS AND RECORDS WITH RESPECT TO THE
TAX MATTERS PERTINENT TO THE COMPANY OR THE COMPANY'S SUBSIDIARIES RELATING TO
ANY TAXABLE PERIOD BEGINNING BEFORE THE CLOSING DATE UNTIL THE EXPIRATION OF THE
STATUTE OF LIMITATIONS (INCLUDING EXTENSIONS THEREOF) OF THE RESPECTIVE TAXABLE
PERIODS, AND TO ABIDE BY ALL RECORD RETENTION AGREEMENTS ENTERED INTO WITH ANY
TAXING AUTHORITY, AND (II) TO GIVE THE OTHER PARTY REASONABLE WRITTEN NOTICE
PRIOR TO TRANSFERRING, DESTROYING OR DISCARDING ANY SUCH BOOKS AND RECORDS.
8.2.
OTRAVEL MARK
BUYER ACKNOWLEDGES THAT ALL RIGHT, TITLE AND INTEREST IN AND
TO (I) THE MARK "OTRAVEL" AND TO ANY DERIVATIONS THEREOF (COLLECTIVELY, THE
"OTRAVEL MARK"), AND (II) ANY OTHER MARK WITH THE LETTER "O" AS THE FIRST LETTER
OF THE MARK (INCLUDING "OVERSTOCK.COM" AND ANY DERIVATIONS THEREOF
(COLLECTIVELY, "O MARKS"), OTHER THAN ANY MARK WITH "O" BEING THE FIRST LETTER
OF A THE MARK AS A WORD IN ITS STANDARD USAGE, ARE EXCLUSIVELY OWNED BY SELLER,
AND THAT NEITHER THE COMPANY NOR BUYER HAS OR SHALL ACQUIRE PURSUANT TO THIS
AGREEMENT ANY RIGHTS WHATSOEVER TO THE OTRAVEL MARK OR ANY O MARK OTHER THAN AS
SET FORTH IN THE