Common use of Tax Returns; Taxes Clause in Contracts

Tax Returns; Taxes. (a) The Company acknowledges that on and after the Closing Date the Surviving Corporation shall be an indirect wholly-owned subsidiary of MedSource as a result of the Merger and, accordingly, any Tax Return referred to in Section 4.14 hereof that was not required to be filed prior to the Closing Date shall be filed, or caused to be filed, by MedSource after the Closing Date. Any Tax Return under this Section 7.1(a) shall be prepared on a basis consistent with past practice. (b) After the Closing Date, MedSource shall preserve all information, records or other documents relating to any Tax until the date that is six (6) months after the expiration of the statute of limitations applicable to the Tax. In addition, the Buyer Group and the Stockholder Representative shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns and in connection with any Tax Proceeding. Any investigation, review, comment or discussion by the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSource.

Tax Returns; Taxes. (a) The No Shareholder shall take or fail to take any action or permit the Company acknowledges that on and after to take or fail to take any action which could result in the Closing Date the Surviving Corporation shall be an indirect wholly-owned subsidiary termination of MedSource as a result any "S" corporation election (or similar election) of the Merger and, accordingly, any Tax Return referred to in Section 4.14 hereof that was not required Company. The Shareholders shall duly file or cause to be filed prior on a timely basis all Tax Returns of, relating to or which include the Company, its income, assets or business, for all Pre-Closing Date Periods. Such Tax Returns shall be filedtrue, or caused to be filedcorrect and complete, by MedSource after the Closing Date. Any Tax Return under this Section 7.1(a) shall be prepared filed on a basis consistent with past practiceprior Tax Returns of or relating to the Company, its income, assets or business, and shall not make, amend or terminate any election by the Company (or to which the Company is subject) or change any Tax accounting method, practice or procedure of the Company, without MedSource's prior written consent. The Shareholders shall give MedSource a copy of each such Tax Return for its review with sufficient time for comments and corrections prior to filing. The Shareholders shall cause the Company to timely and properly withhold and collect, pay over and report all Taxes required to be withheld or collected by the Company on or before the Closing Date. (b) After The Shareholders shall be responsible for and shall timely pay all Taxes, including, without limitation, any Taxes resulting from a Tax Proceeding for which the Closing Date, MedSource shall preserve all information, records Company is or other documents relating may be liable with respect to any Tax until the date that is six (6) months after the expiration of the statute of limitations applicable to the TaxPre-Closing Period. In addition, subject to the provisions of sections 5.1(a) and 9 hereof, the Shareholders shall be entitled to receive all refunds of Taxes with respect to any Pre-Closing Period, to the extent that such Taxes were originally paid by the Shareholders. The Shareholders shall indemnify the Company, the Buyer Group and their respective Affiliates, as the Stockholder Representative shall cooperate case may be (collectively, the "Taxpayer"), and hold the Taxpayer harmless, from and against any (i) Taxes of the Company with each other upon request respect to a Pre-Closing Period for which the Taxpayer is or may be liable, (ii) the effect, if any, on the Taxpayer in connection any period that ends after the Closing Date of an adjustment with all matters relating respect to the preparation of any Tax Returns a Pre-Closing Period and in connection with any Tax Proceeding. Any investigation(iii) fees and expenses (including, reviewwithout limitation, comment or discussion reasonable attorneys' fees) incurred by the Buyer Group related to or their Affiliates in connection therewith or in enforcing its rights or collecting any amounts due hereunder. This indemnity shall apply notwithstanding any investigation made by the Buyer Group in connection with the payment of Taxestransactions contemplated by this Agreement or, the preparation of Tax Returns or drafts of Tax Returnsits receipt, the examination, filing of Tax Returns, or commenting on any Tax Proceeding or Return, and shall be separate and independent of any provision other indemnity between the parties hereto. For purposes of this Section 7.1 Agreement, "Pre-Closing Period" shall not affect mean any tax period ending on or before the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceClosing Date.

Tax Returns; Taxes. (a) The Company acknowledges that Purchaser and Seller shall cooperate in preparing and filing tax returns relating to all sales, excise, real estate, use, transfer or license tax due with regard to the transactions contemplated by this Agreement. Purchaser and Seller shall each be responsible for and pay for one-half (1/2) of all of such sales, excise, use, transfer or license taxes resulting from the purchase, sale or transfer of the Assets and transactions contemplated hereby. (b) All of the other fees and charges which are payable by Seller or attributable to the conduct of the Business or the ownership, possession or use of the Assets, including rents, general and special assessments, street surfacing and other municipal charges, fuel, water, sewer, electrical and other utility charges and documentation, license and registration fees (collectively, the "OTHER CHARGES") shall be prorated (as described below) as of the Closing Date. After the Closing, Purchaser shall make or cause to be made all necessary filings with respect to Taxes and the Other Charges. (c) All Taxes related to the Transferred Facilities or to the Business accrued or accruable with respect to events occurring prior to the close of business on and after the Closing Date the Surviving Corporation shall be an indirect whollyborne by Seller. For this purpose, the Closing Date shall be treated as the last day of a taxable period, whether or not the taxable period in fact ends on such period. All Taxes related to the Real Property, the real property subject to the Lease Agreements so long as such Lease Agreements are in effect, or to the Business accrued or accruable with respect to events occurring after the close of business on the Closing Date will be borne by Purchaser. (d) Real and personal property taxes with respect to any Assets sold pursuant to this Agreement shall be prorated based on the ratio of number of days in the pre-owned subsidiary closing period to the number of MedSource as days in the actual taxable period with respect to which tax is assessed, irrespective of when such taxes are due, become a result lien or are assessed; provided, however, nothing in this Section 6.8(d) shall cause a duplication in the payment of the Merger and, accordingly, real or personal property taxes. (e) Purchaser shall at its own cost and expense fully and accurately complete and submit any Tax Return referred tax data packages with respect to in Section 4.14 hereof that was not required to be filed taxable years ending on or prior to the Closing Date shall be filedor for the 1995 taxable year reasonably required by Seller by the earlier of March 15, 1996 or caused to be filed, by MedSource 180 days after the Closing Date. Any Tax Return under this Section 7.1(a) shall be prepared on a basis consistent with past practice. (b) After the Closing Date, MedSource shall preserve all information, records or other documents relating to any Tax until the date that is six (6) months after the expiration of the statute of limitations applicable to the Tax. In addition, the Buyer Group and the Stockholder Representative shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns and in connection with any Tax Proceeding. Any investigation, review, comment or discussion by the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costsif compliance with this Section requires more than eighty (80) hours of service from Purchaser's personnel, fees Seller shall reimburse Purchaser for the prorated wages, salaries and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) fringe benefits of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourcepersonnel for each hour of service in excess of such amount.

Tax Returns; Taxes. (a1) The Company acknowledges Seller and the Shareholder shall duly and timely file or cause to be filed with the applicable Taxing Authorities all Tax Returns that on and after the Closing Date the Surviving Corporation shall be an indirect wholly-owned subsidiary of MedSource as a result of the Merger and, accordingly, any Tax Return referred to in Section 4.14 hereof that was not are required to be filed prior by or on behalf of the Seller or that include or relate to the Acquired Assets or the Business, which Tax Returns shall be true, complete and correct, and shall duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date shall be filedand could result in a Lien on any Acquired Asset or the Business, and has recorded a provision on the books and records of the Seller in accordance with GAAP for the payment of all such Taxes that are not due and payable on or caused to be filed, by MedSource after before the Closing Date. Any The Seller shall provide to the Buyer true, complete and correct copies of such Tax Return under this Section 7.1(a) shall be prepared on a basis consistent with past practice. (b) After the Closing DateReturns and all correspondence, MedSource shall preserve all information, records or other reports and documents relating to any Tax until Proceeding with respect thereto. The Seller shall duly and timely comply with all applicable laws relating to the date allocation or withholding of Taxes and the reporting and remittance thereof to the applicable Taxing Authorities. (2) The Seller and the Shareholder shall indemnify the Buyer and Affiliates, (collectively, the "Taxpayer"), and hold the Taxpayer harmless, on an after-Tax basis, from and against any (i) Taxes with respect to the Business or any of the Acquired Assets for any period on or before the Closing Date for which the Taxpayer is or may be liable, (ii) the effect, if any, on the Taxpayer in any period that is six (6) months ends after the expiration Closing Date of an adjustment with respect to a period on or before the statute Closing Date and (iii) fees and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Buyer or its Affiliates in connection therewith or in enforcing its rights or collecting any amounts due hereunder. This indemnity shall apply notwithstanding any investigation made by the Buyer in connection with the transactions contemplated by this Agreement or, its receipt, examination, filing of limitations applicable or commenting on any Tax Return, and shall be separate and independent of any other indemnity between the parties hereto. (3) The Buyer shall promptly forward to the TaxShareholder a copy of all written communications from any Governmental Authority received by the Taxpayer relating to any period on or before the Closing Date. In additionThe Shareholder shall promptly forward to the Buyer a copy of all written communications from any Governmental Authority received by the Seller or the Shareholder relating to any period on or before the Closing Date for which the Taxpayer is or may be liable. (4) The Buyer shall not settle or make any payment of any amount claimed to be due with respect to a proposed adjustment described above for at least 15 days after giving notice thereof to the Shareholder under section 7.3(c) hereof. If, within such 15-day period, the Buyer Group receives from the Shareholder in writing a request that the proposed adjustments be contested, which includes a reasonable basis in fact or in law for such contest, and acknowledges its liability under this indemnity, the Stockholder Representative Taxpayer shall contest such proposed adjustments in good faith and agrees to consult with the Shareholder regarding the contest and to keep the Shareholder informed as to its progress, all at the Shareholder's expense. The Shareholder shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns and Taxpayer in connection with any Tax Proceeding. Any investigation, review, comment or discussion by The Shareholder may participate in the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations of the Company. Each party shall bear at its own costs and expenses in complying with the provisions of this Section 7.1(b)expense; provided, however, that any the Taxpayer shall -------- ------- retain full control over the Proceeding. The decision of a court of competent jurisdiction as to the outcome of such reasonable costscontest which has become final shall be conclusive and binding on the parties. The Taxpayer shall not be required to appeal. (5) Any Taxes for a period which includes but does not end on the Closing Date shall be allocated between the period before the Closing Date and the balance of the period in accordance with this section 7.3(e). To the extent permitted under applicable Law, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (parties shall elect to treat the Tax period as ending at the close of business on the Closing Date. Where applicable Law does not permit such approval not an election to be unreasonably withheld)made, the taxable income or other Tax base for the entire period shall be reimbursed by MedSource andallocated between the period on or before the Closing Date and the balance of the period on the basis of an interim closing of the books at the close of the Closing Date, thereafterexcept that exemptions, allocations and deductions calculated on an annual basis shall be charged against apportioned on the MedSource Shares held pursuant to basis of the Escrow Agreement such that the relative number of MedSource Shares days in the period on or before the Closing Date and in the balance of the period. Notwithstanding the foregoing, any real estate or personal property Taxes shall be allocated on the basis of the relative number of days in the period on or before the Closing Date and in the balance of the applicable period. (6) The Seller hereby agrees to comply with the value (as determined pursuant to notice and other requirements of the Escrow Agreement) General Laws of such coststhe Commonwealth of Massachusetts of 1932, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceChapter 62C, section 51.

Tax Returns; Taxes. (a1) The Company acknowledges Seller and the Shareholders shall duly and timely file or cause to be filed with the applicable Taxing Authorities all Tax Returns that are required to be filed by or on behalf of the Seller or that include or relate to the Acquired Assets or the Business, which Tax Returns shall be true, complete and correct, and shall duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date and could result in a Lien on any Acquired Asset or the Business, and has recorded a provision on the books and records of the Seller in accordance with GAAP for the payment of all such Taxes that are not due and payable on or before the Closing Date. The Seller shall provide to the Buyer true, complete and correct copies of such Tax Returns and all correspondence, reports and documents relating to any Tax Proceeding with respect thereto. The Seller shall duly and timely comply with all applicable laws relating to the allocation or withholding of Taxes and the reporting and remittance thereof to the applicable Taxing Authorities. (2) The Seller and the Shareholders shall indemnify the Buyer and Affiliates, (collectively, the "Taxpayer"), and hold the Taxpayer harmless, on an after-Tax basis, from and against any (i) Taxes with respect to any period on or before the Closing Date for which the Taxpayer is or may be liable, (ii) the effect, if any, on the Taxpayer in any period that ends after the Closing Date of an adjustment with respect to a period on or before the Surviving Corporation Closing Date and (iii) fees and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Buyer or its Affiliates in connection therewith or in enforcing its rights or collecting any amounts due hereunder. This indemnity shall apply notwithstanding any investigation made by the Buyer in connection with the transactions contemplated by this Agreement or, its receipt, examination, filing of or commenting on any Tax Return, and shall be an indirect whollyseparate and independent of any other indemnity between the parties hereto. (3) The Buyer shall promptly forward to the Shareholders a copy of all written communications from any Governmental Authority received by the Taxpayer relating to any period on or before the Closing Date. The Shareholders shall promptly forward to the Buyer a copy of all written communications from any Governmental Authority received by the Seller or any Shareholder relating to any period on or before the Closing Date for which the Taxpayer is or may be liable. (4) The Buyer shall not settle or make any payment of any amount claimed to be due with respect to a proposed adjustment described above for at least 15 days after giving notice thereof to the Shareholders under Section 7.3(c) hereof. If, within such 15-owned subsidiary of MedSource as a result day period, the Buyer receives from all of the Merger andShareholders in writing a request that the proposed adjustments be contested, accordinglywhich includes a reasonable basis in fact or in law for such contest, any Tax Return referred and acknowledges their liability under this indemnity, the parties shall contest such proposed adjustments in good faith and agree to in Section 4.14 hereof that was consult with each other regarding the contest and to keep each other informed as to its progress, all at the Shareholders' expense. The decision of a court of competent jurisdiction as to the outcome of such contest which has become final shall be conclusive and binding on the parties. (5) Any Taxes for a period which includes but does not required to be filed prior to end on the Closing Date shall be filedallocated between the period before the Closing Date and the balance of the period in accordance with this Section 7.3(e). To the extent permitted under applicable Law, or caused the parties shall elect to be filed, by MedSource after treat the Tax period as ending at the close of business on the Closing Date. Any Where applicable Law does not permit such an election to be made, the taxable income or other Tax Return under this Section 7.1(a) base for the entire period shall be prepared allocated between the period on a or before the Closing Date and the balance of the period on the basis consistent with past practice. (b) After of an interim closing of the books at the close of the Closing Date, MedSource except that exemptions, allocations and deductions calculated on an annual basis shall preserve all information, records or other documents relating to any Tax until be apportioned on the date that is six (6) months after the expiration basis of the statute relative number of limitations applicable to days in the Tax. In addition, period on or before the Buyer Group and the Stockholder Representative shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns Closing Date and in connection with any Tax Proceeding. Any investigation, review, comment or discussion by the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations balance of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceperiod.

Tax Returns; Taxes. (a) The Company acknowledges that on Through and after including the Closing Date Date, no Stockholder shall take or fail to take any action, or permit Elite to take or fail to take any action, that could result in the termination of any “S” corporation election (or similar election) of Elite prior to the Closing. The Stockholders shall prepare and duly and timely file all Tax Returns that are required to be filed by or on behalf of Elite for any Tax period through and including the Closing Date, which such Tax Returns shall be true, correct and complete, shall be prepared in a manner consistent with its prior Tax Returns and shall not make, amend or terminate any election or change any accounting method, practice or procedure without the prior written consent of Mattress Firm and Newco. The Stockholders shall use their reasonable best efforts to provide to Mattress Firm and Newco copies of such Tax Returns with sufficient time for comments and corrections prior to filing. The Stockholders shall cause Elite to, and the Stockholders and Elite shall, duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date. The Stockholders shall cause Elite to record a provision on the books and records of Elite in accordance with GAAP for the payment of all such Taxes that are not due and payable on or before the Closing Date. The Stockholders shall cause Elite to duly and timely comply with all applicable Laws relating to the collection or withholding of Taxes and the reporting and remittance thereof to the applicable Governmental Authorities. (b) The Stockholders shall be responsible for and shall timely pay or reimburse Newco for all Taxes, including, without limitation, any Taxes resulting from a Proceeding, for which Elite (or the Surviving Corporation as its successor) is or may be liable with respect to any Pre-Closing Period to the extent such Taxes are not reflected on the Financial Statements. (c) Mattress Firm or the Surviving Corporation shall promptly forward to the Stockholders a copy of any written communication from any Governmental Authority received by the Surviving Corporation relating to any Pre-Closing Period. Each Stockholder shall promptly forward to Mattress Firm and the Surviving Corporation a copy of all written communications from any Governmental Authority received by Elite (on or before the Closing Date) or any Stockholder relating to Elite or any Tax for which Elite is or may be an indirect whollyliable or that could result in a Lien on the stock of Elite or any of its assets. (i) Neither Mattress Firm nor the Surviving Corporation shall settle or make any payment of any amount claimed to be due with respect to a proposed adjustment to any Taxes for which Elite is or may be liable solely with respect to a Pre-owned subsidiary of MedSource as a result Closing Period for at least 10 days after giving notice thereof to the Stockholders pursuant to Section 7.7(c). (ii) Notwithstanding any provision to the contrary in this section 7.7(d), the Stockholders shall have the right, at their option (in the manner provided in clause (ii)), to assume control of the Merger and, accordingly, defense of any Tax Return referred Proceeding that relates solely to Taxes of Elite for a Pre-Closing Period if, and only if, such Tax Proceeding or the resolution thereof could not have an Adverse Tax Impact. If the Stockholders assume control, the Stockholders shall defend such Tax Proceeding in Section 4.14 hereof that was not required good faith and may use legal counsel selected by them provided such legal counsel is reasonably acceptable to Mattress Firm and the Surviving Corporation. The Stockholders shall keep Mattress Firm and the Surviving Corporation apprised as to the status of such Tax Proceeding and any proceedings with respect thereto, including, without limitation, the positions taken by the parties. The costs of such defense shall be borne solely by the Stockholders. Mattress Firm and the Surviving Corporation (or their designees) shall have the right, at their expense, to participate in such defense, including, without limitation, to attend any meetings and to be filed represented by legal counsel selected by it. Notwithstanding anything herein to the contrary, no Stockholder shall suggest, negotiate for or agree to any position that would or is reasonably likely to have an Adverse Tax Impact on Mattress Firm, Newco, the Surviving Corporation or any of their Affiliates without the prior written consent of Mattress Firm and the Surviving Corporation, which consent may be withheld in their discretion. (iii) The Stockholders shall assume control of a Tax Proceeding under clause (ii) above by written notice to Mattress Firm and the Surviving Corporation within 15 days after notice of the Tax Proceeding pursuant to Section 7.7(c), stating that the Stockholders are undertaking and will prosecute the defense of such Tax Proceeding, the Tax Proceeding is subject to the indemnification provisions of Section 11.1(d) and that the Stockholders will be able to pay the full amount of the potential liability in connection with such Tax Proceeding. With respect to any matter for which a Mattress Firm Indemnitee is indemnified pursuant to Section 11.1(d), to the extent the indemnification procedures set forth in this Section 11.3 conflict with the procedures set forth in this Section 7.7, the procedures set forth in this Section 7.7 shall govern. (e) Any Taxes for a period which includes but does not end on the Closing Date shall be filedallocated between the Pre-Closing Period and the balance of the period in accordance with this section 7.7(e). To the extent permitted under applicable Law, or caused the parties shall elect to be filed, by MedSource after treat the Tax period as ending at the close of the Closing Date. Any Where applicable Law does not permit such an election to be made, the taxable income or other Tax Return under this Section 7.1(a) base for the entire period shall be prepared allocated between the period on a or before the Closing Date and the balance of the period on the basis consistent with past practiceof an interim closing of the books at the close of the Closing Date, except that any real estate or personal property Taxes shall be apportioned on the basis of the relative number of days in the period on or before the Closing Date and in the balance of the period. (bf) The Stockholders shall duly and timely file all required stock transfer and other transfer Tax Returns and pay when due any such Taxes in connection with the transactions contemplated by this Agreement. The Stockholders shall promptly provide to Mattress Firm and the Surviving Corporation a copy of any such Tax Returns and proof of payment of any such Taxes. (g) After the Closing Date, MedSource neither Mattress Firm nor the Surviving Corporation shall amend any Tax Return of Elite that relates to a Pre-Closing Period if such amendment would cause an adverse impact on the Tax liability of the Transferors without the prior written consent of the Stockholders. (h) The Surviving Corporation shall, and Mattress Firm shall cause the Surviving Corporation to, for a period of six years after the Closing, preserve all information, records or other documents relating Tax Returns of Elite (and associated records) that relate to any Tax until the date that is six (6) months after the expiration of the statute of limitations applicable Pre-Closing Period and shall make them available to the Tax. In addition, the Buyer Group Stockholders or their authorized representatives at all reasonable times and the Stockholder Representative shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns on reasonable advance notice for inspection and in connection with order to make copies and extracts therefrom for any Tax Proceeding. Any investigationproper purpose, review, comment or discussion by the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope of all such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations of the Company. Each party shall bear its own costs inspection and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not copies to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against made at the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceStockholders’ sole expense.

Tax Returns; Taxes. (a) The Company acknowledges that on and after To the Closing Date extent permitted under applicable Law, the Surviving Corporation parties shall be an indirect wholly-owned subsidiary of MedSource as a result of the Merger and, accordingly, cause or elect to treat any Tax Return referred to in Section 4.14 hereof that was not required to be filed prior to period including the Closing Effective Date shall be filed, or caused to be filed, by MedSource after as ending at the close of business on the Closing Date. Any Tax Return under this Section 7.1(aThe Sellers and the Shareholders (i) shall (A) duly and timely file or cause to be prepared filed with the applicable Taxing Authorities all Tax Returns with respect to any Tax period ending on a basis consistent with past practice. or before the Closing Date and that include or relate to any Acquired Asset or the Business, which such Tax Returns shall be true, correct and complete, and (bB) After duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date; and (ii) have recorded a provision on the books and records of the Sellers for the payment of all such Taxes that are not due and payable on or before the Closing Date. The Sellers shall, MedSource and the Shareholders shall preserve cause the Sellers to, provide to the Buyer true, complete and correct copies of such Tax Returns and all informationcorrespondence, records or other reports and documents relating to any Tax until the date that is six (6) months after the expiration of the statute of limitations applicable to the TaxProceeding with respect thereto. In additionThe Sellers shall, the Buyer Group and the Stockholder Representative Shareholders shall cooperate with each other upon request in connection cause the Sellers to, duly and timely comply with all matters applicable Laws relating to the preparation collection or withholding of Taxes and the reporting and remittance thereof to the applicable Taxing Authorities. (i) The Buyer shall file all Tax Returns for any Tax Returns period that includes but does not end on the Closing Date. The Buyer shall allocate any Taxes for a period which includes but does not end on the Closing Date between the period before the Closing Date and the balance of the period on the basis of an interim closing of the books at the close of the Closing Date, except that exemptions, allocations and deductions calculated on an annual basis shall be apportioned on the basis of the relative number of days in the period on or before the Closing Date and in connection with the balance of the period. Notwithstanding the foregoing, any real estate or personal property Taxes shall be allocated on the basis of the relative number of days in the period on or before the Effective Date and in the balance of the applicable period. (ii) Within five (5) days of receiving notification of the amount of Tax Proceeding. Any investigation, review, comment or discussion by allocated to the Buyer Group related period ending prior to or in connection with the payment of TaxesEffective Date, the preparation of Tax Returns or drafts of Tax ReturnsSellers and the Shareholders shall pay, on a net after-tax basis, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 shall not affect the indemnity provisions of Article 10 or limit the scope amount of such provisions (including but not limited Tax allocated to Section 10.1) in any way, or affect any other representations, warranties or obligations the portion of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant period ending on or prior to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceEffective Date.

Tax Returns; Taxes. (a1) The Transferors shall cause the Company acknowledges to duly and timely file or cause to be filed with the applicable Taxing Authorities all Tax Returns that on and after the Closing Date the Surviving Corporation shall be an indirect wholly-owned subsidiary of MedSource as a result of the Merger and, accordingly, any Tax Return referred to in Section 4.14 hereof that was not are required to be filed by or on behalf of the Company through and including the Closing Date, which such Tax Returns shall be true, correct and complete, shall be prepared in a manner consistent with its prior Tax Returns and shall not make, amend or terminate any election or change any accounting method, practice or procedure without the Transferee's prior written consent. The Transferors shall provide to the Transferee true, complete and correct copies of such Tax Returns with sufficient time for comments and corrections prior to filing. The Transferors shall also provide to the Transferee true, correct and complete copies of any and all correspondence, reports and documents relating to any Tax Proceeding with respect to any Tax or Tax Return of the Company. The Transferors shall cause the Company to duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date with respect to each Tax period ending on or before the Closing Date (each such period or portion, a "Pre-Closing Period") for which the Company is or may be liable or that could result in a Lien on the stock of the Company or any of its assets. The Transferors shall be filed, cause the Company to record a provision on the books and records of the Company in accordance with GAAP for the payment of all such Taxes that are not due and payable on or caused to be filed, by MedSource after before the Closing Date. Any Tax Return under this Section 7.1(a) The Transferors shall be prepared on a basis consistent cause the Company to duly and timely comply with past practiceall applicable Laws relating to the collection or withholding of Taxes and the reporting and remittance thereof to the applicable Taxing Authorities. (bi) The Transferors, on the one hand, and the Transferee, on the other hand, shall notify the other in writing on a timely basis but in any event not later than 15 days of receipt of written notice of each pending or threatened Tax Proceeding that could affect any Tax relating to a Pre-Closing Period for which the Company is or may be liable. If the recipient of such notice of a Tax Proceeding fails to provide such timely notice to the other party it shall still be entitled to indemnification for any Taxes arising in connection with such Tax Proceeding unless the other party's rights in the Tax Proceeding are materially adversely affected by such failure to give notice. (ii) Notwithstanding the provisions of section 10.3 hereof, the Transferee shall control the defense of any Tax Proceeding and following notice to and consultation with the Transferors in accordance with section 11.2 may make, in good faith, a compromise or settlement thereof, provided that the Transferors shall have the right to participate in the conduct of any Tax Proceeding at their own cost and expense. (3) After the Closing Date, MedSource the Transferee and the Transferors shall preserve each make available to the other, upon reasonable request, all information, records or other documents relating to any Tax Taxes with respect to Pre-Closing Periods and shall preserve all such information, records or other documents until the date that is six (6) months after the expiration of the any applicable statute of limitations applicable to the Tax(including extensions). In addition, the Buyer Group Transferee and the Stockholder Representative Transferors shall cooperate with each the other upon request in connection with all matters relating to the preparation of any Tax Returns and in connection with any Tax ProceedingProceeding referred to in this provision. Any investigation, review, comment or discussion by the Buyer Group Transferee related to or in connection with the payment of TaxesTax, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 section 5.3 shall not affect the indemnity provisions of Article section 10 or limit the scope of such provisions (including but not limited to Section 10.1section 9.1) in any way, or affect any other representations, warranties or obligations of the CompanyTransferors. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(bsection 5.3(c); provided. (4) The Transferors shall (A) duly and timely file with the applicable Taxing Authority all Tax Returns required to be filed by any of the Transferors in connection with the transactions contemplated by this Agreement, howeverincluding without limitation all transfer tax returns, that and (B) duly and timely pay in full all Taxes required to be paid in connection therewith. The Transferors shall promptly provide to MedSource and the Transferee a copy of any such reasonable costs, fees Tax Returns and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (proof of payment of any such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceTaxes.

Tax Returns; Taxes. (a) The Company acknowledges shall: (1) close each tax period that on and after begins before the Closing Date the Surviving Corporation shall be an indirect wholly-owned subsidiary of MedSource for each Tax as a result of the Merger andclose of the day immediately preceding or on the Closing Date to the extent permitted by Law; (2) duly and timely file, accordinglyat the Company's expense, any each Tax Return referred to in Section 4.14 hereof that was not required to be filed by the Company on or prior to the Closing Date shall or that include or relate to the Company's income, assets or business that are required to be filedfiled on or prior to the Closing Date (including valid extensions of time to file); and (3) duly and timely pay in full, all Taxes for which the Company is or may be liable on each such Tax Return. A Tax Return caused to be filed, by MedSource after the Closing Date. Any Tax Return filed under this Section 7.1(a5.3(a) shall be prepared on a basis consistent with past practice. (b) After the Closing Date, MedSource the Company, Xybernaut and the Principal Shareholders shall preserve each make available to the other, upon reasonable request, all information, records or other documents relating to any Tax and shall preserve all such information, records or other documents until the date that is six (6) months after the expiration of the statute of limitations applicable to the Tax. In addition, Xybernaut, the Buyer Group Company and the Stockholder Representative Principal Shareholders shall cooperate with each the other upon request in connection with all matters relating to the preparation of any Tax Returns and in connection with any Tax ProceedingProceeding referred to in this provision. Any investigation, review, comment or discussion by the Buyer Group Xybernaut related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returns, any Tax Proceeding or any provision of this Section 7.1 5.3 shall not affect the indemnity provisions of Article 10 9 or limit the scope of such provisions (including but not limited to Section 10.19.1) in any way, or affect any other representations, warranties or obligations of the Principal Shareholders or the Company. Each party Principal Shareholder shall bear its his own costs and expenses in complying with the provisions of this Section 7.1(b5.3(b); provided, however, that any such reasonable costs, fees . (c) The Principal Shareholders and expenses incurred the Company shall: (A) duly and timely file with the applicable Taxing Authority all Tax Returns required to be filed by the Stockholder RepresentativePrincipal Shareholders or the Company in connection with the transactions contemplated by this Agreement (including without limitation, which are approved all Tax Returns relating to any real property or stock transfer Tax, mortgage recording Tax, or any documentary stamp Tax), and (B) duly and timely pay in advance by MedSource (such approval not full all Taxes required to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the number of MedSource Shares with the value (as determined pursuant to the Escrow Agreement) of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourcepaid in connection therewith.

Tax Returns; Taxes. (a1) Through and including the Closing Date, the Transferor shall not take or fail to take any action and no Shareholder shall take or fail to take any action or permit the Transferor to take or fail to take any action, that could result in the termination of any "S" corporation election (or similar election) of the Transferor. The Transferor and the Shareholders shall (A) duly and timely file or cause to be filed with the applicable Taxing Authorities all Tax Returns that are required to be filed by or on behalf of the Transferor or that include or relate to any Acquired Asset or the Business, which such Tax Returns shall be true, correct and complete, and (B) duly and timely pay in full or cause to be paid in full all Taxes that are due and payable on or before the Closing Date or that could result in a Lien on any Acquired Asset or the Business (except for real estate Taxes not yet due and payable) and shall record a provision on the books and records of the Transferor in accordance with GAAP for the payment of all such Taxes that are not due and payable on or before the Closing Date. The Transferor shall, and the Shareholders shall cause the Transferor to, provide to the Transferee true, complete and correct copies of such Tax Returns and all correspondence, reports and documents relating to any Tax Proceeding with respect thereto. The Transferor shall, and the Shareholders shall cause the Transferor to, duly and timely comply with all applicable Laws relating to the collection or withholding of Taxes and the reporting and remittance thereof to the applicable Taxing Authorities. (2) The Company acknowledges Transferor and the Shareholders shall indemnify MedSource, the Transferee and its Affiliates (collectively, the "Taxpayer"), and hold the Taxpayer harmless, on an after-Tax basis, from and against any (i) Taxes of the Transferor or relating to an Acquired Asset with respect to any period on or before the Closing Date for which the Taxpayer is or may be liable, (ii) the effect, if any, on the Taxpayer in any period that on and ends after the Closing Date of an adjustment relating to the Surviving Corporation Transferor's Tax, Tax Returns or an Acquired Asset with respect to a period on or before the Closing Date and (iii) fees and expenses (including, without limitation, reasonable attorneys' fees) incurred by the Transferee or its Affiliates in connection therewith or in enforcing its rights or collecting any amounts due hereunder. This indemnity shall apply notwithstanding any investigation made by MedSource, the Transferee in connection with the transactions contemplated by this agreement or, its receipt, examination, filing of or commenting on any Tax Return, and shall be an indirect wholly-owned subsidiary separate and independent of any other indemnity between the parties hereto. (3) MedSource as or the Transferee shall promptly forward to the Shareholders a result copy of all written communications from any Governmental Authority received by the Merger and, accordingly, Taxpayer relating to any Tax Return referred period on or before the Closing Date. The Shareholders shall promptly forward to in Section 4.14 hereof that was the Transferee a copy of all written communications from any Governmental Authority received by the Transferor or any Shareholder relating to any period on or before the Closing Date for which the Taxpayer is or may be liable. (4) Any Taxes for a period which includes but does not required to be filed prior to end on the Closing Date shall be filedallocated between the period before the Closing Date and the balance of the period in accordance with this section 7.3(d). To the extent permitted under applicable Law, or caused the parties shall elect to be filed, by MedSource after treat the Tax period as ending at the close of business on the Closing Date. Any Where applicable Law does not permit such an election to be made, the taxable income or other Tax Return under this Section 7.1(a) base for the entire period shall be prepared allocated between the period on a or before the Closing Date and the balance of the period on the basis consistent with past practice. (b) After of an interim closing of the books at the close of the Closing Date, MedSource except that exemptions, allocations and deductions calculated on an annual basis shall preserve all information, records or other documents relating to any Tax until be apportioned on the date that is six (6) months after the expiration basis of the statute relative number of limitations applicable to days in the Tax. In addition, period on or before the Buyer Group and the Stockholder Representative shall cooperate with each other upon request in connection with all matters relating to the preparation of any Tax Returns Closing Date and in connection with any Tax Proceedingthe balance of the period. Any investigation, review, comment or discussion by Notwithstanding the Buyer Group related to or in connection with the payment of Taxes, the preparation of Tax Returns or drafts of Tax Returns, the filing of Tax Returnsforegoing, any Tax Proceeding real estate or any provision of this Section 7.1 personal property Taxes shall not affect be allocated on the indemnity provisions of Article 10 or limit the scope of such provisions (including but not limited to Section 10.1) in any way, or affect any other representations, warranties or obligations basis of the Company. Each party shall bear its own costs and expenses in complying with the provisions of this Section 7.1(b); provided, however, that any such reasonable costs, fees and expenses incurred by the Stockholder Representative, which are approved in advance by MedSource (such approval not to be unreasonably withheld), shall be reimbursed by MedSource and, thereafter, shall be charged against the MedSource Shares held pursuant to the Escrow Agreement such that the relative number of MedSource Shares with days in the value (as determined pursuant to period on or before the Escrow Agreement) Closing Date and in the balance of such costs, fees and expenses shall be released from the escrow fund held pursuant to the Escrow Agreement and returned to MedSourceapplicable period.