5.10
RIGHTS TO INDEMNIFICATION.
F&H LLC'S CERTIFICATE OF FORMATION AND
OPERATING AGREEMENT (AT THE TIME OF THE F&H LLC MERGER) SHALL CONTAIN THE SAME
PROVISIONS RELATING TO INDEMNIFICATION AND EXCULPATION OF MANAGERS AND OFFICERS
OF F&H LLC (AND, WITH RESPECT TO THE PERIOD PRIOR TO THE F&H LLC MERGER,
DIRECTORS AND OFFICERS OF THE COMPANY) AS CURRENTLY
CONTAINED IN THE ARTICLES OF INCORPORATION AND BYLAWS OF THE COMPANY (WITH
RESPECT TO OFFICERS AND DIRECTORS OF THE COMPANY) FOR ACTS AND OMISSIONS ON OR
PRIOR TO THE CLOSING DATE. THE PURCHASER SHALL NOT AMEND, ALTER, MODIFY, OR
TERMINATE ANY PROVISIONS IN F&H LLC'S CERTIFICATE OF FORMATION OR OPERATING
AGREEMENT OR OTHER EQUIVALENT GOVERNING DOCUMENTS IN A MANNER WHICH WOULD
REMOVE, LIMIT OR IMPAIR SUCH PROVISIONS PROVIDING FOR SUCH INDEMNIFICATION AND
EXCULPATION.
THE PURCHASER SHALL CAUSE F&H LLC TO MAINTAIN INSURANCE COVERAGE
UNDER A DIRECTOR AND OFFICERS LIABILITY INSURANCE POLICY FOR A PERIOD OF NOT
LESS THAN SIX (6) YEARS FROM THE DATE HEREOF (IN AMOUNTS NO LESS FAVORABLE THAN
THOSE OF SUCH POLICY IN EFFECT ON THE DATE HEREOF AND SUFFICIENT IN SCOPE TO
INSURE AGAINST F&H LLC'S OBLIGATIONS IN ITS CERTIFICATE OF FORMATION AND
OPERATING AGREEMENT, INCLUDING COVERAGE FOR THE PERIOD UP TO AND INCLUDING
CLOSING DATE).
IN LIEU OF THE FOREGOING, THE PURCHASER MAY PURCHASE SIX-YEAR
"TAIL" COVERAGE COVERING ACTS OR OMISSIONS PRIOR TO THE CLOSING ON TERMS NO LESS
FAVORABLE THAN THOSE CONTAINED IN THE EXISTING POLICY.
THIS SECTION 5.10 IS
INTENDED FOR THE IRREVOCABLE BENEFIT OF, AND TO GRANT THIRD PARTY RIGHTS TO, THE
DIRECTORS AND OFFICERS OF THE COMPANY (AND THE MANAGERS AND OFFICERS OF F&H LLC)
EXISTING ON OR AT ANYTIME PRIOR TO THE CLOSING (AND THEIR RESPECTIVE HEIRS AND
PERSONAL REPRESENTATIVES), AND SHALL BE BINDING UPON ALL SUCCESSORS AND ASSIGNS
OF THE PURCHASER, F&H LLC AND THE COMPANY.
THE DIRECTORS AND OFFICERS OF THE
COMPANY (AND THE MANAGERS AND OFFICERS OF F&H LLC) AS OF IMMEDIATELY PRIOR TO
CLOSING SHALL BE ENTITLED TO ENFORCE THE COVENANTS CONTAINED IN THIS
SECTION 5.10.
IN THE EVENT THAT F&H LLC (OR ANY OF ITS SUCCESSORS OR ASSIGNS)
SHALL CONSOLIDATE OR MERGE WITH ANY OTHER PERSON AND SHALL NOT BE THE CONTINUING
OR SURVIVING CORPORATION OR ENTITY IN SUCH CONSOLIDATION OR MERGER, OR TRANSFERS
ALL OR SUBSTANTIALLY ALL OF ITS PROPERTIES AND ASSETS TO ANY OTHER PERSON, THEN
IN EACH CASE PROPER PROVISION SHALL BE MADE SO THAT THE CONTINUING OR SURVIVING
CORPORATION OR ENTITY (OR ITS SUCCESSORS OR ASSIGNS, IF APPLICABLE), OR
TRANSFEREE OF SUCH ASSETS, AS THE CASE MAY BE, SHALL ASSUME THE OBLIGATIONS SET
FORTH IN THIS SECTION 5.10 SUBJECT TO APPLICABLE LAW.
5.11
ACKNOWLEDGEMENT OF PERSONAL PROPERTY.
THE PARTIES ACKNOWLEDGE AND
AGREE THAT THE PERSONAL PROPERTY SET FORTH IN SCHEDULE 5.11 IS PERSONAL PROPERTY
OWNED BY THE SELLERS AND THAT SELLERS SHALL BE ENTITLED TO REMOVE SUCH PERSONAL
PROPERTY FROM THE PREMISES OF THE COMPANY.
5.12
TAX MATTERS.
(A)
PREPARATION OF TAX RETURNS.
(I)
TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE.