FOR ALL PERIODS ENDING ON OR
PRIOR TO THE CLOSING DATE WHICH ARE REQUIRED TO BE FILED AFTER THE CLOSING
DATE.
SELLER SHALL PERMIT STOCK BUYER TO REVIEW AND APPROVE EACH SUCH TAX
RETURN DESCRIBED IN THE PRECEDING SENTENCE PRIOR TO FILING, WHICH APPROVAL SHALL
NOT BE UNREASONABLY WITHHELD.
(B)
SELLER SHALL CAUSE TO BE PREPARED AND FILE
OR CAUSE TO BE FILED ALL TAX RETURNS OF XCEL JAPAN FOR STRADDLE PERIODS.
SELLER
SHALL PERMIT STOCK BUYER TO REVIEW AND APPROVE EACH SUCH TAX RETURN DESCRIBED IN
THE PRECEDING SENTENCE PRIOR TO FILING, WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD.
(C)
STOCK BUYER AND SELLER SHALL COOPERATE WITH
EACH OTHER IN CONNECTION WITH THE FILING OF ANY TAX RETURNS AND ANY AUDIT,
LITIGATION OR OTHER PROCEEDING WITH RESPECT TO TAXES.
STOCK BUYER AND SELLER
AGREE (I) TO RETAIN ALL BOOKS AND RECORDS WITH RESPECT TO TAX MATTERS PERTINENT
TO EACH OF SELLER AND XCEL JAPAN RELATING TO THE BUSINESS AND TO ANY TAXABLE
PERIOD BEGINNING BEFORE THE CLOSING DATE UNTIL THE EXPIRATION OF THE STATUTE OF
LIMITATIONS (AND, TO THE EXTENT NOTIFIED BY SELLER OR STOCK BUYER, ANY
EXTENSIONS OF THE STATUTE OF LIMITATIONS) OF THE RESPECTIVE TAXABLE PERIODS, AND
TO ABIDE BY ALL RECORD RETENTION AGREEMENTS ENTERED INTO WITH ANY TAXING
AUTHORITY, OR (II) TO GIVE THE OTHER PARTY REASONABLE WRITTEN NOTICE PRIOR TO
TRANSFERRING, DESTROYING OR DISCARDING ANY SUCH BOOKS AND RECORDS AND, IF ANY OF
THE OTHER PARTY SO REQUESTS, STOCK BUYER OR SELLER, AS THE CASE MAY BE, SHALL
ALLOW THE OTHER PARTY TO TAKE POSSESSION OF SUCH BOOKS AND RECORDS.
(D)
TO THE EXTENT STOCK BUYER DOES NOT APPROVE A
TAX RETURN PURSUANT TO SECTION 6.1(A) OR 6.1(B) AND SELLER DOES NOT AGREE TO THE
CHANGES SUGGESTED BY STOCK BUYER, THE DISPUTE SHALL BE SUBMITTED TO RSM
MCGLADREY (OR ITS INTERNATIONAL AFFILIATES) (THE "ARBITRATOR"), WITHIN FIVE
(5) BUSINESS DAYS OF THE DATE ON WHICH SELLER DOES NOT AGREE TO MAKE SUCH
CHANGES.
THE ARBITRATOR SHALL RESOLVE ANY DISPUTED ITEMS WITHIN FIFTEEN (15)
BUSINESS DAYS OF HAVING THE ITEM REFERRED TO IT (AND IN ANY CASE AT LEAST THREE
BUSINESS DAYS PRIOR TO THE TIME IN WHICH SUCH TAX RETURN MUST BE FILED (TAKING
INTO ACCOUNTS ALL EXTENSIONS THAT ARE AVAILABLE WITHOUT INCURRING PENALTIES OR
ADDITIONAL TAXES)) PURSUANT TO SUCH PROCEDURES AS IT MAY REQUIRE.
THE PARTIES
SHALL PROMPTLY ACT TO IMPLEMENT THE DECISION OF THE ARBITRATOR.
THE COSTS, FEES
AND EXPENSES OF THE ARBITRATOR SHALL BE BORNE EQUALLY BY SELLER AND STOCK BUYER
UNLESS THE ARBITRATOR DETERMINES THAT A PARTY'S POSITION WAS UNREASONABLE OR NOT
IN GOOD FAITH.
6.2
TRANSFER TAXES.
ALL EXCISE, SALES, USE,
VALUE ADDED, TRANSFER (INCLUDING REAL PROPERTY TRANSFER), STAMP, DOCUMENTARY,
FILING, RECORDATION, REGISTRATION AND OTHER SIMILAR TAXES,
55
TOGETHER WITH ANY INTEREST, ADDITIONS, FINES, COSTS OR PENALTIES THEREON AND ANY
INTEREST IN RESPECT OF ANY ADDITIONS, FINES, COSTS OR PENALTIES, RESULTING
DIRECTLY FROM THE ACQUISITION OR IMPOSED IN CONNECTION WITH THIS AGREEMENT AND
THE TRANSACTION CONTEMPLATED HEREBY (THE "TRANSFER TAXES")