ALL TAXES THAT ARE REQUIRED TO BE PAID BY OR WITH
RESPECT TO THE INCOME, ASSETS OR OPERATIONS OF THE COMPANY FOR ANY TAX PERIOD
BEGINNING AND ENDING AFTER THE CLOSING DATE (THE "POST-CLOSING TAX PERIOD") .
(D)
THE COMPANY AND BUYER SHALL COOPERATE FULLY,
AS AND TO THE EXTENT REASONABLY REQUESTED BY THE OTHER PARTY, IN CONNECTION WITH
THE FILING OF TAX RETURNS PURSUANT TO THIS SECTION 4.2AND ANY AUDIT, LITIGATION,
OR OTHER PROCEEDING WITH RESPECT TO TAXES.
SUCH COOPERATION SHALL INCLUDE THE
RETENTION AND (UPON THE OTHER PARTY'S REQUEST) THE PROVISION OF RECORDS AND
INFORMATION WHICH ARE REASONABLY RELEVANT TO ANY SUCH AUDIT, LITIGATION, OR
OTHER PROCEEDING, AND MAKING EMPLOYEES REASONABLY AVAILABLE ON A MUTUALLY
CONVENIENT BASIS TO PROVIDE ADDITIONAL INFORMATION AND EXPLANATION OF ANY
MATERIAL PROVIDED HEREUNDER.
(E)
AT THE SOLE OPTION OF THE BUYER AT ANY TIME
FOLLOWING THE CLOSING, THE COMPANY AND THE SELLER SHAREHOLDERS SHALL JOIN WITH
BUYER IN MAKING AN ELECTION UNDER CODE SECTION 338(H)(10) (AND ANY CORRESPONDING
ELECTION UNDER STATE, LOCAL, AND NON-U.S. TAX LAW) WITH RESPECT TO THE PURCHASE
AND SALE OF THE COMPANY'S STOCK HEREUNDER (COLLECTIVELY A
"SECTION 338(H)(10) ELECTION").
THE SELLER SHAREHOLDERS SHALL COOPERATE FULLY
WITH THE BUYER IN MAKING THE SECTION 338(H)(10) ELECTION, INCLUDING EXECUTING
AND FILING IRS FORM 8023 AND ALL OTHER FORMS, RETURNS, ELECTIONS, SCHEDULES, AND
DOCUMENTS REQUIRED TO EFFECT THE SECTION 338(H)(10) ELECTION (THE "FORMS") AND
DELIVERING THE FORMS TO THE BUYER PROMPTLY UPON REQUEST.
THE BUYER SHALL BE
AUTHORIZED TO COMPLETE THE FORMS IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT AND FILE THE FORMS WITH THE APPLICABLE GOVERNMENTAL ENTITIES.
IF THE
BUYER OPTS TO MAKE THE SECTION 338(H)(10) ELECTION, THE PARTIES AGREE THAT,
EXCEPT AS REQUIRED BY A FINAL DETERMINATION WITH ANY TAX OR APPLICABLE JUDICIAL
AUTHORITY, THEY WILL NOT TAKE, OR CAUSE OR PERMIT TO BE TAKEN, ANY ACTION IN
CONNECTION WITH THE FILING OF ANY TAX RETURN OR ELECTION ON BEHALF OF THE SELLER
SHAREHOLDERS, BUYER, OR COMPANY, WHICH WOULD BE INCONSISTENT WITH, PREJUDICE, OR
ADVERSELY AFFECT THE SECTION 338(H)(10) ELECTION.
THE SELLER SHAREHOLDERS SHALL
INCLUDE ANY INCOME, GAIN, LOSS, DEDUCTION, OR OTHER TAX ITEM RESULTING FROM THE
SECTION 338(H)(10) ELECTION ON THEIR TAX RETURNS TO THE EXTENT REQUIRED BY
APPLICABLE LAW.
THE SELLER SHAREHOLDERS SHALL ALSO PAY ANY TAX IMPOSED ON THE
COMPANY ATTRIBUTABLE TO THE MAKING OF THE SECTION 338(H)(10) ELECTION, INCLUDING
(I) ANY TAX IMPOSED UNDER CODE SECTION 1374, (II) ANY TAX IMPOSED UNDER REG.
SECTION 1.338(H)(10)-1(D)(2), OR (III) ANY STATE, LOCAL, OR NON-U.S. TAX IMPOSED
ON THE COMPANY'S GAIN, AND SELLER SHAREHOLDERS SHALL INDEMNIFY BUYER AND COMPANY
AGAINST ANY ADVERSE CONSEQUENCES ARISING OUT OF ANY FAILURE TO PAY ANY SUCH
TAXES.
(F)
IF THE BUYER ELECTS TO MAKE A
SECTION 338(H)(10) ELECTION, THE BUYER, COMPANY, AND SELLER SHAREHOLDERS AGREE
THAT THE PURCHASE PRICE AND THE LIABILITIES OF THE COMPANY AND ITS QUALIFIED
SUBCHAPTER S SUBSIDIARIES (PLUS OTHER RELEVANT ITEMS) WILL BE ALLOCATED TO THE
ASSETS OF THE COMPANY AND ITS QUALIFIED SUBCHAPTER S SUBSIDIARIES FOR ALL
PURPOSES