ENTITY WILL NOT BE REQUIRED TO INCLUDE ANY
MATERIAL ITEM OF INCOME IN, OR EXCLUDE ANY MATERIAL ITEM OF DEDUCTION FROM,
TAXABLE INCOME FOR ANY TAXABLE PERIOD (OR PORTION THEREOF) ENDING AFTER THE
CLOSING DATE AS A RESULT OF ANY:
(I)
CHANGE IN METHOD OF ACCOUNTING FOR A TAXABLE PERIOD ENDING
ON OR PRIOR TO THE CLOSING DATE;
(II)
"CLOSING AGREEMENT" AS DESCRIBED IN CODE §7121 (OR ANY
CORRESPONDING OR SIMILAR PROVISION OF STATE, LOCAL, OR NON-U.S. INCOME TAX LAW)
EXECUTED ON OR PRIOR TO THE CLOSING DATE;
(III)
INTERCOMPANY TRANSACTIONS OR ANY EXCESS LOSS ACCOUNT DESCRIBED
IN TREASURY REGULATIONS UNDER CODE §1502 (OR ANY CORRESPONDING OR SIMILAR
PROVISION OF STATE, LOCAL, OR NON-U.S. INCOME TAX LAW);
(IV)
INSTALLMENT SALE OR OPEN TRANSACTION DISPOSITION MADE ON OR
PRIOR TO THE CLOSING DATE; OR
(V)
PREPAID AMOUNT RECEIVED ON OR PRIOR TO THE CLOSING DATE.
(G)
THE BLOCKER ENTITY HAS NOT DISTRIBUTED STOCK OF ANOTHER
PERSON, OR HAS HAD ITS STOCK DISTRIBUTED BY ANOTHER PERSON, IN A TRANSACTION
THAT WAS PURPORTED OR INTENDED TO BE GOVERNED IN WHOLE OR IN PART BY CODE §355
OR CODE §361.
(H)
THE BLOCKER ENTITY IS NOT OR HAS NOT BEEN A PARTY TO ANY
"LISTED TRANSACTION," AS DEFINED IN CODE §6707A(C)(2) AND REG. §1.6011-4(B)(2).
2.4
NO OTHER LIABILITIES.
THE BLOCKER ENTITY DOES NOT HAVE ANY
LIABILITIES OR OBLIGATIONS, WHETHER KNOWN OR UNKNOWN, ACCRUED, ABSOLUTE,
CONTINGENT, UNLIQUIDATED OR OTHERWISE (AND THERE IS NO VALID BASIS FOR ANY SUCH
LIABILITY OR OBLIGATION OR ANY VALID CLAIM IN RESPECT THEREOF), OTHER THAN ANY
LIABILITIES RETAINED BY THE BLOCKER ENTITY FOR UNPAID TAXES.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE
BUYER
Each of Parent and the Buyer represents and warrants to the Blocker Entity and
the Selling Equityholders on the date hereof and on the Closing Date as follows:
3.1
ORGANIZATION, QUALIFICATION AND POWER; ENFORCEABILITY.
EACH OF
PARENT AND THE BUYER IS A CORPORATION, DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF DELAWARE.
EACH OF PARENT THE BUYER HAS THE
CORPORATE POWER AND AUTHORITY, TO EXECUTE AND DELIVER THIS AGREEMENT, TO PERFORM
ITS OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAVE BEEN
DULY AUTHORIZED BY ALL REQUISITE CORPORATE ACTION ON THE PART OF EACH OF PARENT
AND THE BUYER.
THIS AGREEMENT CONSTITUTES A VALID AND BINDING OBLIGATION OF
EACH OF PARENT AND THE BUYER, IS ENFORCEABLE AGAINST PARENT IN ACCORDANCE WITH
ITS TERMS, EXCEPT TO THE EXTENT THAT ENFORCEABILITY MAY BE LIMITED BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS
AFFECTING THE RIGHTS AND REMEDIES OF CREDITORS GENERALLY.
SECTION 4.
COVENANTS
4.1
TAX COVENANTS.
WITHOUT THE PRIOR WRITTEN CONSENT OF PARENT, NO
BLOCKER ENTITY SHALL MAKE OR CHANGE ANY ELECTION, CHANGE AN ANNUAL ACCOUNTING
PERIOD, ADOPT OR CHANGE ANY ACCOUNTING METHOD, FILE ANY AMENDED TAX RETURN,
ENTER INTO ANY CLOSING AGREEMENT, SETTLE ANY TAX CLAIM OR ASSESSMENT RELATING TO
THE BLOCKER ENTITY, SURRENDER ANY RIGHT TO CLAIM A REFUND OF