AGREEMENT FOR
ANY TAXES OF ANY OF THE COMPANY AND THE SUBSIDIARIES EXCEPT (1) AS OTHERWISE
EXPRESSLY PROVIDED IN THIS SECTION 7.7 WITH RESPECT TO CERTAIN FEDERAL INCOME
TAXES, STATE INCOME TAXES, AND PROPERTY TAXES OF THE COMPANY AND THE
SUBSIDIARIES AND (2) SOLELY WITH RESPECT TO OTHER TAXES, AS PROVIDED IN
ARTICLE X FOR INACCURACY OR BREACH OF A REPRESENTATION OR WARRANTY MADE BY PFC
IN SECTION 4.14 AND AS PROVIDED IN SECTION 10.2(H). SECTION 10.4 SHALL APPLY TO
ANY CLAIM OR DEMAND BY A THIRD PARTY FOR WHICH ONE PARTY MAY BE LIABLE TO
INDEMNIFY ANOTHER PARTY PURSUANT TO THIS SECTION 7.7; PROVIDED, HOWEVER,
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.4, ONLY PFC AND ITS
AFFILIATES (EXCLUDING THE COMPANY AND THE SUBSIDIARIES) SHALL, AND SHALL HAVE
THE RIGHT TO, CONDUCT AND CONTROL ANY MATTER RELATING TO AN INCOME TAX RETURN
(OR THE INCOME TAX WITH RESPECT THERETO) FILED ON A CONSOLIDATED, UNITARY,
COMBINED OR SIMILAR BASIS BY PFC GROUP (OR ANY PORTION OF PFC GROUP) FOR A
PERIOD ENDING ON OR BEFORE OR INCLUDING THE CLOSING DATE, AND BUYER AND ITS
AFFILIATES SHALL HAVE NO RIGHT TO CONDUCT, CONTROL OR PARTICIPATE IN ANY SUCH
MATTER.
(I)
SURVIVAL. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
THE COVENANTS AND OBLIGATIONS SET FORTH IN THIS SECTION 7.7 SHALL SURVIVE UNTIL,
AND ANY CLAIM FOR INDEMNIFICATION WITH RESPECT THERETO MUST BE MADE BY SIXTY
(60) DAYS FOLLOWING THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS WITH
RESPECT TO THE UNDERLYING TAX CLAIM (INCLUDING ANY VALID EXTENSIONS).
7.8
FEES AND EXPENSES.
(A)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL FEES AND
EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT BY PFC, THE COMPANY AND THE
SUBSIDIARIES, INCLUDING PROFESSIONAL EXPENSES SUCH AS LEGAL, ACCOUNTING AND
ENGINEERING, IN CONNECTION WITH THE NEGOTIATION, PREPARATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT PRIOR TO THE CLOSING DATE AND THE CONSUMMATION OF THE
TRANSACTIONS ON OR BEFORE THE CLOSING, WILL BE BORNE BY AND PAID BY PFC
(SUBJECT, HOWEVER, TO THE LAST SENTENCE OF SECTION 9.4). ALL AMOUNTS DUE AND
OWING PETRIE PARKMAN & CO. BY THE COMPANY AND THE SUBSIDIARIES IN RESPECT OF THE
TRANSACTIONS HEREUNDER WILL BE BORNE BY AND PAID BY PFC. THE COMPANY AND THE
SUBSIDIARIES SHALL ASSIGN ALL OF THEIR RIGHTS AND OBLIGATIONS OF THE COMPANY AND
THE SUBSIDIARIES PURSUANT TO THE ENGAGEMENT LETTER
46
BETWEEN THE COMPANY AND PETRIE PARKMAN & CO. DATED AS OF JUNE 8, 2006, TO PFC
PRIOR TO CLOSING.
(B)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL EXPENSES
INCURRED IN CONNECTION WITH THIS AGREEMENT BY BUYER WILL BE BORNE BY AND PAID BY
BUYER, REGARDLESS OF WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
CONSUMMATED (SUBJECT, HOWEVER, TO THE LAST SENTENCE OF SECTION 9.4).
7.9
PUBLICITY. FROM THE DATE OF THIS AGREEMENT UNTIL CLOSING, ALL
GENERAL NOTICES, RELEASES, STATEMENTS AND COMMUNICATIONS TO SUPPLIERS,
DISTRIBUTORS AND CUSTOMERS OF PFC, THE COMPANY, THE SUBSIDIARIES AND THEIR
AFFILIATES, ON THE ONE HAND, OR BUYER AND ITS AFFILIATES, ON THE OTHER HAND,