DUE TO ANY GOVERNMENTAL ENTITY, PURSUANT TO ANY APPLICABLE FOREIGN, FEDERAL,
STATE OR LOCAL LAW, COMMON LAW, STATUTE, RULE OR REGULATION WITH RESPECT TO THE
EMPLOYMENT, DISCHARGE OR LAYOFF OF EMPLOYEES ON OR AFTER THE CLOSING, INCLUDING
THE WARN ACT AND ANY RULES OR REGULATIONS AS HAVE BEEN ISSUED IN CONNECTION WITH
THE FOREGOING.
(II)
FROM AND AFTER THE CLOSING, BUYER SHALL BE
RESPONSIBLE FOR, AND SHALL INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES
AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND THE
FIDUCIARIES (INCLUDING PLAN ADMINISTRATORS) OF THE EMPLOYEE PLANS, FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND EXPENSES) AND OTHER LIABILITIES AND OBLIGATIONS RELATING TO
OR ARISING OUT OF (I) ALL SALARIES, WAGES, COMMISSIONS, EMPLOYEE INCENTIVE OR
OTHER COMPENSATION, SEVERANCE, HOLIDAY, VACATION, HEALTH, DENTAL OR RETIREMENT
BENEFITS ACCRUED BUT UNPAID AS OF THE CLOSING AND BONUSES (INCLUDING PAYMENTS
DUE PURSUANT TO ANY RETENTION BONUS PROGRAM) DUE TO ANY EMPLOYEE, (II) THE
LIABILITIES FOR WHICH BUYER OR THE COMPANY IS RESPONSIBLE UNDER THIS SECTION 4.1
OR ANY FAILURE BY BUYER OR THE COMPANY TO COMPLY WITH THE PROVISIONS OF THIS
SECTION 4.1, AND (III) ANY CLAIMS OF, OR DAMAGES OR PENALTIES SOUGHT BY, ANY
EMPLOYEE, OR ANY GOVERNMENTAL ENTITY ON BEHALF OF OR CONCERNING ANY EMPLOYEE,
WITH RESPECT TO ANY ACT OR FAILURE TO ACT BY BUYER OR THE COMPANY TO THE EXTENT
ARISING FROM THE EMPLOYMENT, DISCHARGE, LAYOFF OR TERMINATION OF ANY EMPLOYEE.
14
4.2
TAX MATTERS; COOPERATION.
(A)
SUBJECT TO SUBSECTION (B) BELOW, SELLER
WILL BE RESPONSIBLE FOR THE PREPARATION AND FILING OF ALL TAX RETURNS OF THE
COMPANY REQUIRED BY APPLICABLE LAW TO BE FILED BY THE COMPANY WITH RESPECT TO
TAXABLE PERIODS THAT END ON OR PRIOR TO THE CLOSING DATE, PROVIDED THAT SELLER
SHALL HAVE THE SOLE RESPONSIBILITY FOR THE PREPARATION OF ANY COMBINED,
CONSOLIDATED OR UNITARY RETURNS FOR THE PERIODS ENDING ON OR PRIOR TO THE
CLOSING.
(B)
BUYER WILL BE RESPONSIBLE FOR THE
PREPARATION AND FILING OF ALL TAX RETURNS OF THE COMPANY NOT FILED BY THE
COMPANY PRIOR TO THE CLOSING, INCLUDING RETURNS WITH RESPECT TO PERIODS
COMMENCING BEFORE AND ENDING AFTER THE CLOSING (A "STRADDLE PERIOD TAX") AND
WITH RESPECT TO PERIODS THAT BEGIN AFTER THE CLOSING DATE.
SUCH TAX RETURNS
SHALL BE TRUE, COMPLETE AND CORRECT AND PREPARED IN ACCORDANCE WITH PAST
PRACTICE (IN THE CASE OF ANY TAX RETURN FOR A PERIOD ENDING PRIOR TO THE CLOSING
OR ANY STRADDLE PERIOD TAX RETURN) AND APPLICABLE LAW IN ALL MATERIAL RESPECTS.
BUYER WILL MAKE ALL PAYMENTS OF TAXES SHOWN TO BE DUE ON SUCH TAX RETURNS.
BUYER SHALL NOT CAUSE THE COMPANY TO TAKE ANY POSITION ON ANY TAX RETURN
INCONSISTENT WITH PAST PRACTICES OF THE COMPANY IF THE EFFECT OF SUCH POSITION
WILL OR COULD RESULT IN THE COMPANY HAVING ANY TAX LIABILITY FOR ANY PERIOD
ENDING PRIOR TO OR INCLUDING THE CLOSING DATE.
(C)
BUYER SHALL BE RESPONSIBLE FOR PAYING,
SHALL PROMPTLY DISCHARGE WHEN DUE, AND