ANY AUDIT OR OTHER DEFENSE OF ANY
TAX CLAIM (OTHER THAN A TAX CLAIM RELATING SOLELY TO TAXES OF GISH FOR A
STRADDLE PERIOD, WHICH AS DESCRIBED BELOW, THE PARTIES SHALL JOINTLY CONTROL)
WITH ITS OWN COUNSEL, PROVIDED THAT SELLER'S NOTICE ACKNOWLEDGES SELLER'S
INDEMNIFICATION LIABILITY FOR SUCH CLAIM.
SELLER'S RIGHT TO CONTROL A TAX CLAIM
WILL BE LIMITED TO ISSUES IN RESPECT OF WHICH AMOUNTS IN DISPUTE WOULD BE PAID
BY SELLER OR FOR WHICH SELLER WOULD BE LIABLE PURSUANT TO SECTION 11.1.
COSTS
OF DEFENDING OR CONTESTING SUCH TAX CLAIMS ARE TO BE BORNE BY SELLER UNLESS THE
TAX CLAIM RELATES TO A STRADDLE PERIOD, IN WHICH EVENT SUCH COSTS SHALL BE
FAIRLY APPORTIONED AS DESCRIBED BELOW.
BUYER AND GISH AT THEIR OWN EXPENSE EACH
SHALL COOPERATE WITH SELLER IN CONTESTING ANY TAX CLAIM, WHICH COOPERATION SHALL
INCLUDE THE RETENTION AND, UPON SELLER'S REQUEST, THE PROVISION OF RECORDS AND
INFORMATION THAT ARE
61
REASONABLY RELEVANT TO SUCH TAX CLAIM AND MAKING EMPLOYEES AVAILABLE ON A
MUTUALLY CONVENIENT BASIS TO PROVIDE ADDITIONAL INFORMATION OR EXPLANATION OF
ANY MATERIAL PROVIDED HEREUNDER.
NOTWITHSTANDING THE FOREGOING, SELLER SHALL
NEITHER CONSENT NOR AGREE TO THE SETTLEMENT OF ANY TAX CLAIM WITH RESPECT TO ANY
LIABILITY FOR TAXES IN EXCESS OF US DOLLARS TEN THOUSAND (USD 10,000) ON THE
PART OF GISH OR ANY AFFILIATED GROUP (AS DEFINED IN SECTION 1504(A) OF THE CODE)
OF WHICH GISH IS A MEMBER FOR ANY POST-CLOSING TAX PERIOD WITHOUT THE PRIOR
WRITTEN CONSENT OF BUYER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED. NEITHER SELLER, NOR ANY AFFILIATE OF SELLER, SHALL FILE
AN AMENDED TAX RETURN THAT MAY INCREASE THE LIABILITY FOR TAXES OF GISH FOR ANY
POST-CLOSING TAX PERIOD WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
FOR THE
AVOIDANCE OF DOUBT, UNLESS OTHERWISE AUTHORIZED BY SELLER IN WRITING, ONLY
SELLER IS AUTHORIZED TO FILE ANY TAX RETURN RESPECTING GISH AND ANY OF ITS
SUBSIDIARIES FOR ANY PRE-CLOSING TAX PERIOD, INCLUDING THE PORTION OF THE TAX
YEAR ENDING ON THE CLOSING DATE.
BUYER AND SELLER SHALL JOINTLY CONTROL ALL
PROCEEDINGS TAKEN IN CONNECTION WITH ANY TAX CLAIMS RELATING SOLELY TO A
STRADDLE PERIOD OF GISH AND EACH PARTY SHALL BEAR ITS OWN OUT-OF-POCKET COSTS
AND EXPENSES OF THE CONTEST AND ALL JOINT COSTS AND EXPENSES OF THE CONTEST
SHALL BE BORNE IN THE SAME RATIO AS THE APPLICABLE PROPOSED TAX WOULD BE
ALLOCATED.
12.
GENERAL PROVISIONS
12.1.
NON-COMPETITION/NON-SOLICITATION.
(A)
FOR A PERIOD OF FIVE YEARS AFTER THE CLOSING (THE "RESTRICTED
PERIOD"), THE SELLER SHALL NOT (AND SHALL CAUSE ITS AFFILIATES NOT TO) ENGAGE,
DIRECTLY OR INDIRECTLY, IN ANY BUSINESS THAT DEVELOPS, MANUFACTURES, PRODUCES,
MARKETS OR SUPPLIES PRODUCTS OR SERVICES, OR CONDUCTS OTHER COMMERCIAL
ACTIVITIES, OF THE KIND DEVELOPED, MANUFACTURED, PRODUCED, MARKETED, SUPPLIED OR
CONDUCTED BY GISH (OR ITS SUCCESSORS) PRIOR TO THE CLOSING OR DURING THE
RESTRICTED PERIOD (INCLUDING PRODUCTS, SERVICES AND ACTIVITIES THAT ARE ACTIVELY
BEING CONSIDERED BY SUCH ENTITIES) OR, WITHOUT PRIOR WRITTEN