business, under the product specific Trademarks used in the
Business.
It is agreed and understood that the Purchaser shall only use the
Corporate Names in accordance with the provisions of Clause 8.14.
8.8
REPORTS AND RETURNS
The Seller shall promptly after the Closing prepare and file all reports and
returns required by applicable Laws relating to the Business as conducted using
the Transferred Assets of the Business for the period prior to the Closing Date.
8.9
ACCESS TO RECORDS
8.9.1
AFTER THE CLOSING, THE PURCHASER SHALL RETAIN FOR A
PERIOD CONSISTENT WITH THE PURCHASER'S RECORD RETENTION POLICIES AND PRACTICES
THOSE RECORDS INCLUDED IN THE TRANSFERRED ASSETS OF THE BUSINESS DELIVERED TO
THE PURCHASER. THE PURCHASER ALSO SHALL PROVIDE THE SELLER AND THEIR EMPLOYEES,
AGENTS, CONSULTANTS AND OTHER ADVISORS AND REPRESENTATIVES REASONABLE ACCESS
THERETO AS MAY BE REASONABLY REQUESTED TO ENABLE THEM TO PREPARE FINANCIAL
STATEMENTS OR TAX RETURNS, DEAL WITH TAX AUDITS OR PAY, DISCHARGE OR PERFORM THE
EXCLUDED LIABILITIES.
8.9.2
THE SELLER SHALL PRESERVE ALL BOOKS OF ACCOUNT,
RECORDS AND FILES IN RESPECT OF THE BUSINESS, OF WHICH THE PURCHASER HAVE NOT
BEEN GIVEN POSSESSION, FOR THE LONGER OF SUCH PERIOD AS MAY BE SPECIFIED UNDER
ANY APPLICABLE LAW OR AS REQUESTED BY THE PURCHASER. THE SELLER SHALL AND SHALL
CAUSE EACH OF ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, AGENTS, CONSULTANTS
AND OTHER ADVISORS AND REPRESENTATIVES TO, ALLOW THE PURCHASER, ITS EMPLOYEES,
OFFICERS, ADVISERS AND AGENTS ACCESS AND TO MAKE COPIES THEREOF, AS MAY BE
REASONABLY REQUESTED BY THE PURCHASER, TO THE BOOKS, RECORDS AND FILES RELATING
TO THE BUSINESS FOR THE PERIOD PRIOR TO AND UP TO THE CLOSING DATE. THE SELLER
AGREES WITH THE PURCHASER TO PROVIDE ALL REASONABLE ASSISTANCE, CO-OPERATION AND
SUPPORT INCLUDING
54
CONFIDENTIAL TREATMENT
[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.
DECLARATIONS, FORMS AND DOCUMENTS TO ENABLE THE PURCHASER TO ADEQUATELY DEAL
WITH ALL LITIGATION, TAX CLAIMS, PROCEEDINGS AND ASSESSMENTS.
8.10
RETURNS OF PRODUCTS
8.10.1
THE SELLER SHALL BE RESPONSIBLE FOR AND SHALL INDEMNIFY
AND HOLD HARMLESS THE PURCHASER IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 7.3
AND CLAUSE 11 AGAINST ANY AND ALL LOSSES THAT THE PURCHASER OR ANY OF ITS
AFFILIATES MAY SUFFER (INCLUDING THE COST OF REPLACEMENT OR RETURNS OF PRODUCTS
OF THE BUSINESS), ARISING OUT OF, RELATING TO OR RESULTING FROM PRODUCTS OF THE
BUSINESS THAT WERE SOLD PRIOR TO THE CLOSING AND RETURNED OR CLAIMED FOR CREDIT
BY ANY CUSTOMER OR DISTRIBUTOR WITHIN THE FIRST 12 (TWELVE) MONTHS AFTER THE
CLOSING DATE (COLLECTIVELY, "RETURNS").
ALL INDEMNIFICATION PAYMENTS MADE
PURSUANT TO THIS CLAUSE 8.10 SHALL BE TREATED BY THE PARTIES AS ADJUSTMENTS TO
THE CASH CONSIDERATION.
THE PARTIES AGREE THAT THE PURCHASER SHALL FIRST SEEK
REIMBURSEMENT FROM AMOUNTS REMAINING IN THE ESCROW AMOUNT FOR ANY
INDEMNIFICATION PAYMENTS MADE PURSUANT TO THIS CLAUSE 8.10.
8.10.2
DURING THE 12 (TWELVE) MONTH PERIOD FOLLOWING THE
CLOSING DATE, NEITHER THE PURCHASER NOR THE SELLER (NOR