WILL BE RESPONSIBLE FOR THE
PREPARATION AND FILING OF ALL TAX RETURNS REQUIRED TO FILED WITH RESPECT TO THE
BUSINESS OR THE PURCHASED ASSETS, INCLUDING TAX RETURNS OF THE PURCHASED
SUBSIDIARIES, FOR WHICH TAXES ARE REPORTED ON A TAX RETURN COVERING A PERIOD
COMMENCING BEFORE AND ENDING AFTER THE EFFECTIVE DATE (A "STRADDLE PERIOD
TAX").
EACH SUCH TAX RETURN SHALL BE PREPARED IN A MANNER CONSISTENT WITH PAST
ACCOUNTING METHODS AND PRACTICES OF SUCH PURCHASED SUBSIDIARY.
(E)
TO THE EXTENT RELEVANT TO THE BUSINESS OR
THE PURCHASED ASSETS, EACH PARTY SHALL (I) PROVIDE THE OTHER WITH SUCH
ASSISTANCE AS MAY REASONABLY BE REQUIRED IN CONNECTION WITH THE PREPARATION OF
ANY TAX RETURN AND THE CONDUCT OF ANY AUDIT OR OTHER EXAMINATION BY ANY TAXING
AUTHORITY OR IN CONNECTION WITH JUDICIAL OR ADMINISTRATIVE PROCEEDINGS RELATING
TO ANY LIABILITY FOR TAXES AND (II) RETAIN AND PROVIDE THE OTHER WITH ALL
RECORDS OR OTHER INFORMATION THAT
18
MAY BE RELEVANT TO THE PREPARATION OF ANY TAX RETURN, OR THE CONDUCT OF ANY
AUDIT OR EXAMINATION, OR OTHER PROCEEDING RELATING TO TAXES.
4.4
ALLOCATION OF CONSIDERATION.
THE PARTIES
AGREE THAT FOR INCOME TAX PURPOSES THE CONSIDERATION RECEIVED BY SELLER FOR THE
PURCHASED ASSETS PURSUANT TO THIS AGREEMENT SHALL BE ALLOCATED IN ACCORDANCE
WITH SECTION 1060 OF THE CODE AND THAT ALL FINANCIAL REPORTS AND INCOME TAX
RETURNS AND REPORTS, INCLUDING IRS FORM 8594, AS APPLICABLE, AND ANY
CORRESPONDING STATE OR FOREIGN TAX FORMS, WILL BE PREPARED AND FILED IN A MANNER
CONSISTENT WITH SUCH ALLOCATION, AND NO PARTY HERETO WILL TAKE ANY POSITION
INCONSISTENT WITH SUCH ALLOCATION IN ANY SUBSEQUENT INCOME TAX RETURNS, REPORTS,
OR PROCEEDINGS.
THE PARTIES AGREE TO COOPERATE IN GOOD FAITH TO ALLOCATE THE
CONSIDERATION IN ACCORDANCE WITH THIS SECTION 4.4 WITHIN 30 DAYS FOLLOWING THE
EFFECTIVE DATE.
4.5
BULK SALES LAWS.
BUYER HEREBY WAIVES
COMPLIANCE BY SELLER WITH ANY APPLICABLE BULK SALE OR BULK TRANSFER LAWS OF ANY
JURISDICTION ("BULK SALES LAWS") IN CONNECTION WITH THE SALE OF THE PURCHASED
ASSETS TO BUYER.
NOTHING IN THIS SECTION 4.5 SHALL ESTOP OR PREVENT BUYER OR
SELLER FROM ASSERTING AS A BAR OR DEFENSE OF ANY ACTION BROUGHT UNDER THE BULK
SALES LAWS THAT SUCH BULK SALES LAWS DO NOT APPLY TO THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.6
CONFIDENTIALITY.
THE PARTIES ACKNOWLEDGE
AND AGREE TO CONTINUE TO ABIDE BY THE TERMS AND CONDITIONS OF THAT CERTAIN
CONFIDENTIALITY AGREEMENT DATED AS OF AUGUST 28, 2007.
4.7
CONDUCT OF BUSINESS DURING EARNOUT PERIOD.
DURING THE PERIOD COMMENCING ON THE EFFECTIVE DATE AND ENDING ON THE LAST DAY OF
YEAR 2, BUYER SHALL DEDICATE SUCH RESOURCES AS, IN ITS COMMERCIAL JUDGMENT, ARE
REQUIRED TO OPERATE THE BUSINESS TO OBTAIN A VIABLE ECONOMIC RETURN, AND TO USE
ITS COMMERCIAL EFFORTS CONSISTENT WITH ITS BUSINESS OBJECTIVES TO ACHIEVE GROSS
REVENUES IN EXCESS OF $30,000,000 IN YEAR 1 AND IN EXCESS OF $40,000,000 IN YEAR
2.
BUYER SHALL, AND SHALL CAUSE ANY AFFILIATES ENGAGED IN THE BUSINESS TO,
CONDUCT THE BUSINESS THROUGH BUYER AND THE PURCHASED SUBSIDIARIES.
NOTHING