COMPLY WITH THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT (THE "WARN ACT"); PROVIDED, HOWEVER, THAT THE SELLER
SHALL NOT TERMINATE THE EMPLOYMENT OF ANY OF ITS RETAINED EMPLOYEES WITHIN
NINETY (90) DAYS FOLLOWING THE CLOSING. OTHER THAN WARN ACT INDEMNIFICATION, THE
BUYER SHALL NOT HAVE ANY LIABILITY OR OBLIGATION WITH RESPECT TO, AND THE SELLER
HEREBY INDEMNIFIES THE BUYER FOR, THE COMPENSATION OF ANY EMPLOYEE OR ANY
EMPLOYEE BENEFITS OF ANY EMPLOYEE, INCLUDING, WITHOUT LIMITATION, ANY BONUSES,
ACCRUED VACATION, HEALTH BENEFITS OR IRA CONTRIBUTIONS, EXCEPT FOR THOSE
BENEFITS THAT ACCRUE PURSUANT TO SUCH EMPLOYEES' EMPLOYMENT WITH THE BUYER ON OR
AFTER THE CLOSING DATE. THE SELLER SHALL COOPERATE WITH THE BUYER IN CONNECTION
WITH ANY OFFER OF EMPLOYMENT FROM THE BUYER TO THE EMPLOYEES AND THE PARTIES
SHALL USE THEIR RESPECTIVE BEST EFFORTS TO CAUSE THE ACCEPTANCE OF ANY AND ALL
SUCH OFFERS. ALL EMPLOYEES HIRED BY THE BUYER SHALL BE AT-WILL EMPLOYEES OF THE
BUYER. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THIS SECTION 3.2
SHALL NOT BE DEEMED TO CREATE ANY RIGHT OR CLAIM FOR THE BENEFIT OF, AND SHALL
NOT BE ENFORCEABLE BY, ANY PERSON THAT IS NOT A PARTY TO THIS AGREEMENT.
3.3
TAKING POSSESSION OF CERTAIN ASSETS. THE BUYER AND THE SELLER
ACKNOWLEDGE THAT ON THE CLOSING DATE SOME OF THE ASSETS WILL BE LOCATED ON
CERTAIN OF THE SELLER'S PREMISES THAT WILL NOT BE TRANSFERRED TO THE BUYER ON
THE CLOSING DATE. THE SELLER HEREBY GRANTS TO THE BUYER A LICENSE TO USE THE
PREMISES OF THE SELLER ON WHICH THE ASSETS ARE LOCATED AS OF THE CLOSING DATE
FOR THE STORAGE, USE AND OPERATION OF THE ASSETS FOR A PERIOD NOT TO EXCEED
NINETY (90) DAYS, DURING WHICH TIME THE BUYER WILL MAKE ARRANGEMENTS FOR TAKING
POSSESSION OF THE ASSETS AND REMOVING THEM FROM THE SELLER'S PREMISES. DURING
SUCH 90-DAY PERIOD, THE BUYER SHALL BE PERMITTED TO USE SUCH PROPERTY AS MAY BE
NECESSARY TO CONDUCT THE BUYER'S BUSINESS. THE LICENSE GRANTED HEREUNDER IS IN
CONSIDERATION OF THE PURCHASE PRICE AND THE REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE BUYER HEREUNDER, AND NO SEPARATE COMPENSATION SHALL BE PAID TO
THE SELLER FOR THE GRANTING OF SUCH LICENSE.
9
3.4
TAX MATTERS. THE ALLOCATION OF THE PURCHASE PRICE (THE
"ALLOCATION") SHALL BE MADE AS FOLLOWS: (A) THE ASSET PURCHASE PRICE SHALL BE
ALLOCATED AMONG THE ASSETS AS MUTUALLY AGREED UPON BY THE PARTIES HERETO BASED
(I) ON THE FAIR MARKET VALUE OF THE ASSETS ON THE CLOSING DATE AS DETERMINED BY
AN INDEPENDENT APPRAISAL AND (II) IN ACCORDANCE WITH SECTION 1060 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND (B) THE SELLER NONCOMPETE AMOUNT
SHALL BE ALLOCATED TO THE SELLER'S AGREEMENT NOT TO COMPETE CONTAINED IN
SECTION 3.5. THE BUYER AND THE SELLER FOR THEMSELVES AND FOR THEIR RESPECTIVE
SUCCESSORS AND ASSIGNEES COVENANT AND AGREE THAT (I) EACH WILL FILE ITS
FORM 8594 WITH ITS INCOME TAX RETURN FOR THE TAXABLE YEAR THAT INCLUDES THE
CLOSING DATE AND IN ACCORDANCE WITH THE