FOR TAX-FREE TREATMENT UNDER SECTION 355 OF
THE CODE.
(J)
SINCE THE DATE OF GISH'S LAST FINANCIAL STATEMENTS, NEITHER GISH
NOR ANY SUBSIDIARY HAS INCURRED ANY LIABILITY FOR TAXES OTHER THAN TAXES AS TO
TRANSACTIONS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS.
(K)
NEITHER GISH NOR ANY SUBSIDIARY WILL BE REQUIRED TO INCLUDE ANY
ITEM OF INCOME IN, OR EXCLUDE ANY ITEM OF DEDUCTION FROM, TAXABLE INCOME FOR ANY
TAXABLE PERIOD (OR PORTION THEREOF) ENDING AFTER THE CLOSING DATE (I) UNDER
EITHER SECTION 481(A) OR SECTION 482 OF THE CODE (OR AN ANALOGOUS PROVISION OF
STATE, LOCAL, OR FOREIGN LAW), OR (II) AS A RESULT OF ANY (A) CHANGE IN METHOD
OF ACCOUNTING FOR A TAXABLE PERIOD ENDING ON OR PRIOR TO THE CLOSING DATE, OR
(B) CLOSING AGREEMENT DESCRIBED IN SECTION 7121 OF THE CODE (OR AN ANALOGOUS
PROVISION OF STATE, LOCAL, OR FOREIGN LAW) EXECUTED ON OR PRIOR TO THE CLOSING
DATE.
(L)
ATTACHED HERETO AS EXHIBIT 3.10(L) ARE PAGES 60 THROUGH 63 OF
SELLER'S FORM 1120 AS FILED FOR THE FISCAL YEAR ENDED MARCH 31, 2006, WHICH
REFLECT CUMULATIVE NET OPERATING LOSSES OF GISH AND ANNUAL LIMITATIONS THEREOF
AS OF MARCH 31, 2006.
SELLER WILL FILE SUCH COMPARABLE RETURN FOR THE FISCAL
YEAR ENDED MARCH 31, 2007 ON OR BEFORE THE APPLICABLE FILING DEADLINE IN A
MANNER CONSISTENT WITH PAST PRACTICES.
ALL SUCH TAX RETURNS ARE OR WILL BE
TRUE, CORRECT AND COMPLETE.
FOR THE AVOIDANCE OF DOUBT, SELLER MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO (I) THE USABILITY OF SUCH LOSSES OR
CREDITS BECAUSE OF (A) CHANGES IN TAX LAW AFTER THE CLOSING DATE OR (B) ACTIONS
TAKEN BY GISH OR BUYER AFTER THE CLOSING AND (II) ANY LIMITATION OR RESTRICTION
OF THE USABILITY OF SUCH LOSSES OR CREDITS. SELLER SHALL INDEMNIFY THE
REALIZATION AND AVAILABILITY OF SUCH NOL'S BY GISH FOR FIVE YEARS (5) FROM THE
CLOSING DATE AND UP TO A MAXIMUM CUMULATIVE AMOUNT OF US DOLLARS FIVE HUNDRED
THOUSAND (USD 500,000) OF TAX LIABILITY OF GISH.
23
3.11.
NO MATERIAL ADVERSE CHANGE.
Except as set forth in Part 3.11 of the Disclosure Schedule, since the date of
the Balance Sheet, there has not been any material adverse change in the
business, operations, properties, prospects, assets, or condition of Gish, and
to the Knowledge of each of Seller and Gish, no event has occurred or
circumstance exists that reasonably may be expected to result in such a material
adverse change.
Without limiting the generality of the foregoing, and except as
set forth in Part 3.11 of the Disclosure Schedule, there has been no complaint
from any material customer or supplier of Gish and no notice of breach or of
termination under any Contract with a material customer or supplier of Gish.
3.12.
LABOR AND EMPLOYMENT MATTERS.
(A)
GISH IS IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE
LAWS, AGREEMENTS AND CONTRACTS RELATING TO EMPLOYMENT, EMPLOYMENT PRACTICES,
IMMIGRATION, WAGES, HOURS, AND TERMS AND CONDITIONS OF EMPLOYMENT, INCLUDING,
BUT NOT LIMITED TO,