PURCHASE PRICE ALLOCATION, THE SELLERS MAY, WITHIN 15 DAYS
AFTER
11
DELIVERY OF ACQUIRER'S CALCULATION OF THE PURCHASE PRICE ALLOCATION, DELIVER A
NOTICE TO ACQUIRER DISAGREEING WITH SUCH CALCULATION AND SETTING FORTH SELLERS'
PROPOSED PURCHASE PRICE ALLOCATION. SELLERS AND ACQUIRER SHALL, DURING THE 15
DAY PERIOD FOLLOWING DELIVERY OF SELLERS' NOTICE OF DISAGREEMENT, USE THEIR
REASONABLE BEST EFFORTS TO RESOLVE SUCH DISPUTE AND REACH A MUTUALLY AGREED
PURCHASE PRICE ALLOCATION.
THE PARTIES SHALL (I) PREPARE AND, WHERE APPLICABLE,
FILE EACH REPORT RELATING TO THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX
CONSEQUENCES OF THE PURCHASE AND SALE CONTEMPLATED HEREBY (INCLUDING THE FILING
OF IRS FORM 8594 WHERE RELEVANT) IN A MANNER CONSISTENT WITH THEIR MUTUALLY
AGREED ALLOCATION (OR, IF NO SUCH AGREEMENT IS REACHED IN ACCORDANCE WITH THIS
SECTION 1.8, IN ACCORDANCE WITH AN ALLOCATION DETERMINED IN THE ACQUIRER OR
EITHER SELLER'S SOLE DISCRETION) AND (II) TAKE NO POSITION IN ANY TAX RETURN OR
OTHER TAX FILING, PROCEEDING, AUDIT OR OTHERWISE WHICH IS INCONSISTENT WITH SUCH
ALLOCATION, UNLESS OTHERWISE REQUIRED PURSUANT TO A "DETERMINATION" WITHIN THE
MEANING OF SECTION 1313(A) OF THE CODE OR PURSUANT TO ANY ANALOGOUS FOREIGN
LEGISLATION.
SECTION 1.9
CLOSING.
SUBJECT TO THE
SATISFACTION OR WAIVER OF ALL OF THE CONDITIONS PRECEDENT TO CLOSING HEREUNDER,
THE CONSUMMATION OF THE PURCHASE AND SALE OF THE PURCHASED ASSETS AND THE
ASSUMPTION OF THE ASSUMED LIABILITIES IN ACCORDANCE WITH THIS AGREEMENT (THE
"CLOSING") SHALL TAKE PLACE AT 10:00 A.M., CALIFORNIA TIME, AT THE OFFICES OF
PILLSBURY WINTHROP SHAW PITTMAN LLP, 2475 HANOVER STREET, PALO ALTO, CA 94304,
ON FEBRUARY 26, 2010, OR AT SUCH OTHER DATE, TIME AND PLACE AS THE SELLERS AND
ACQUIRER SHALL MUTUALLY AGREE UPON.
THE DATE OF THE CLOSING SHALL BE REFERRED
TO AS THE "CLOSING DATE."
THE SELLERS AND ACQUIRER HEREBY AGREE TO DELIVER AT
THE CLOSING SUCH DOCUMENTS, CERTIFICATES OF OFFICERS AND OTHER INSTRUMENTS AS
ARE SET FORTH IN ARTICLE VII HEREOF AND AS MAY REASONABLY BE REQUIRED TO EFFECT
THE TRANSFER BY THE SELLERS OF THE PURCHASED ASSETS OR THE ASSUMPTION BY
ACQUIRER OF THE ASSUMED LIABILITIES PURSUANT TO AND AS CONTEMPLATED BY THIS
AGREEMENT AND TO CONSUMMATE THE ACQUISITION.
ALL EVENTS WHICH SHALL OCCUR AT
THE CLOSING SHALL BE DEEMED TO OCCUR SIMULTANEOUSLY.
SECTION 1.10
PRORATIONS.
WITH RESPECT TO CERTAIN
EXPENSES INCURRED IN THE OPERATION OF THE BUSINESS, THE FOLLOWING ALLOCATIONS
WILL BE MADE BETWEEN ACQUIRER AND THE SELLERS TO ENSURE THAT THE SELLERS WILL
BEAR SUCH EXPENSES TO THE EXTENT THEY RELATE TO THE PERIOD PRIOR TO THE CLOSING
DATE, AND ACQUIRER WILL BEAR SUCH EXPENSES TO THE EXTENT THEY RELATE TO THE
PERIOD FROM AND AFTER THE CLOSING DATE:
(A)
UTILITIES, WATER AND SEWER CHARGES WILL BE
APPORTIONED BASED UPON THE NUMBER OF OPERATING DAYS OCCURRING BEFORE AND AFTER
THE CLOSING DATE DURING THE BILLING PERIOD FOR EACH SUCH CHARGE; AND
(B)
EXPENSES INCURRED PURSUANT TO LEASES
INCLUDED IN THE ASSUMED LIABILITIES SHALL BE PRORATED BASED ON THE NUMBER OF
DAYS OCCURRING BEFORE AND AFTER THE CLOSING DATE DURING