AND
UNDERSTOOD THAT THE RIGHTS SET FORTH IN THIS SECTION 11.3 IN RESPECT OF TAXES
ARE THE EXCLUSIVE REMEDY AND ALLOCATION IN RESPECT OF TAXES IN CONNECTION WITH
THIS AGREEMENT.
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5.19
SHALL SURVIVE THE CLOSING UNTIL SIX MONTHS AFTER EXPIRATION OF THE STATE AND
FEDERAL STATUTE OF LIMITATIONS APPLICABLE TO THE MATTERS COVERED THEREBY.
(M)
FOR THE ABSENCE OF DOUBT, THE COVENANTS OF
BUYER, COMPANY AND COMPANY SUBSIDIARIES SET FORTH IN THIS SECTION 11.3 SHALL
APPLY TO BUYER, COMPANY AND COMPANY SUBSIDIARIES REGARDLESS OF ANY POST-CLOSING
DISPOSITION OF COMPANY OR ANY COMPANY SUBSIDIARY BY BUYER OR ANY OF ITS
AFFILIATES.
(N)
(1)
BUYER SHALL MAKE (AND CAUSE SUCH OF ITS
SUBSIDIARIES AS ARE NECESSARY TO MAKE), AND SELLER SHALL JOIN (AND CAUSE SUCH OF
ITS SUBSIDIARIES AS ARE NECESSARY TO JOIN) IN TIMELY MAKING, IRREVOCABLE
ELECTIONS UNDER § 338(H)(10) OF THE CODE (AND ANY CORRESPONDING ELECTION THAT IS
AVAILABLE UNDER STATE OR LOCAL LAW) WITH RESPECT TO THE PURCHASE AND SALE OF THE
SHARES AND THE DEEMED PURCHASE AND SALE OF SHARES OF ANY COMPANY SUBSIDIARY
(SUCH ELECTIONS, THE "338(H)(10) ELECTIONS").
(2)
THE PURCHASE PRICE (INCLUDING ANY
ADJUSTMENTS MADE THERETO PURSUANT TO THIS AGREEMENT) SHALL BE ALLOCATED AMONG
THE ASSETS OF COMPANY IN A MANNER CONSISTENT WITH SCHEDULE 11.3(N) AND §§ 338
AND 1060 OF THE CODE AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER.
(3)
BUYER AND SELLER SHALL, AND SHALL CAUSE
THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES TO, TREAT THE ASSETS AND CAPITAL
STOCK OF THE UK SUBSIDIARY THAT HAVE BEEN DISTRIBUTED BY COMPANY TO SELLER, AS
REFERRED TO IN SECTION 5.18(A) OF THIS AGREEMENT, AND ANY CASH OR INTERCOMPANY
RECEIVABLES DISTRIBUTED BY COMPANY TO SELLER PURSUANT TO SECTION 11.5 OF THIS
AGREEMENT, AS HAVING BEEN DISTRIBUTED IN THE DEEMED LIQUIDATION RESULTING FROM
THE 338(H)(10) ELECTIONS.
(4)
SELLER AND BUYER SHALL AND SHALL CAUSE
THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES TO
41
(A)
TREAT THE 338(H)(10) ELECTIONS AS VALID,
(B)
FILE ALL TAX RETURNS IN A MANNER CONSISTENT
WITH SUCH 338(H)(10) ELECTIONS AND THIS SECTION 11.3, AND
(C)
TAKE NO POSITION OR OTHER ACTION CONTRARY TO
THE 338(H)(10) ELECTIONS OR THIS SECTION 11.3,
IN EACH CASE, EXCEPT TO THE EXTENT REQUIRED TO DO OTHERWISE PURSUANT TO A
DETERMINATION (AS DEFINED IN § 1313(A) OF THE CODE OR ANY SIMILAR PROVISION OF
STATE OR LOCAL TAX LAW).
(5)
IN FURTHERANCE OF THIS SECTION 11.3(N):
(A)
PRIOR TO CLOSING, BUYER AND SELLER SHALL
PREPARE IRS FORM 8023 ("FORM 8023") ON WHICH THE 338(H)(10) ELECTIONS SHALL BE
MADE FOR U.S. FEDERAL INCOME TAX PURPOSES;
(B)
AT OR PRIOR TO CLOSING, SELLER (AND SUCH OF
ITS SUBSIDIARIES AS ARE NECESSARY) AND BUYER (AND SUCH OF ITS SUBSIDIARIES AS
ARE NECESSARY) SHALL EXECUTE FORM 8023, WHICH BUYER AND SELLER SHALL PROMPTLY
FILE OR CAUSE TO BE FILED WITH THE INTERNAL REVENUE SERVICE;
(C)
UPON SELLER'S REQUEST, SELLER, BUYER AND SUCH
OF THEIR RESPECTIVE SUBSIDIARIES AS ARE NECESSARY SHALL COOPERATE IN THE
PREPARATION AND TIMELY FILING OF ANY CORRECTIONS,