AND
RECORDS OF SELLER IF SELLER HAD CONTINUED TO OWN SUCH FIXED ASSETS ON THE DATE
OF THE CLOSING OF THE DIVESTITURE OF THE ACQUISITION ASSETS.
THE REPURCHASE
PRICE FOR THE FIXED ASSETS AND INVENTORIES PURSUANT TO THIS SECTION 6.3(B) SHALL
BE DETERMINED BY BUYER WITHIN FIFTEEN (15) DAYS OF THE OCCURRENCE OF AN EVENT
THAT GIVES BUYER THE RIGHT TO TRIGGER A REPURCHASE PURSUANT TO THIS SECTION.
THEREAFTER, PARENT MAY OBJECT TO SUCH DETERMINATION USING THE SAME FRAMEWORK AS
SET FORTH IN SECTION 6.2(E) HEREOF AND PAYMENT SHALL BE MADE BY PARENT PURSUANT
TO THE PROVISIONS OF SECTION 6.2(F) HEREOF.
A TRANSACTION INVOLVING THE SALE OF
AN AFFECTED BUSINESS OR A SALE OF ACQUISITION ASSETS SUBJECT TO THE REPURCHASE
OBLIGATIONS OF SELLER PURSUANT TO SECTIONS 6.3(A) OR (B), IS REFERRED TO AS A
"DISPOSITION TRANSACTION".
6.4
CONSIGNED INVENTORIES.
IN THE EVENT SELLER HAS IN BUYER'S
DETERMINATION A REASONABLE AMOUNT OF INVENTORIES RELATED TO THE BUSINESS AS OF
THE CLOSING DATE IN EXCESS OF THE INVENTORIES, THE PARTIES MAY REASONABLY AGREE
THAT SUCH INVENTORY (THE "CONSIGNED INVENTORY")
33
SHALL REMAIN AT THE FACILITY FOLLOWING THE CLOSING DATE WITHOUT CHARGE TO SELLER
OR ADAPTEC AND SELLER AND ADAPTEC SHALL BE GIVEN REASONABLE ACCESS TO SUCH
INVENTORY.
FOLLOWING EACH EXERCISE OF THE PUT RIGHT, ANY UNUSED INVENTORY SHALL
REMAIN AT THE FACILITY FOLLOWING SUCH EXERCISE AND THEREAFTER BE TREATED AS
CONSIGNED INVENTORY WITHOUT CHARGE TO SELLER OR ADAPTEC AND SELLER AND ADAPTEC
SHALL BE GIVEN REASONABLE ACCESS TO SUCH INVENTORY.
DURING THE PERIOD
REASONABLY DETERMINED BY THE BUYER (THE "CONSIGNMENT PERIOD"), BUYER AGREES
THAT, IN THE EVENT BUYER REQUIRES INVENTORIES OF THE SAME KIND AND NATURE AS,
AND IN ADDITION TO, THE INVENTORIES PURCHASED ON THE CLOSING DATE FOR THE
MANUFACTURE OF THE PRODUCTS OF THE BUSINESS FOR DELIVERY TO SELLER, PARENT AND
BUYER SHALL USE THE CONSIGNED INVENTORIES TO THE EXTENT REASONABLY POSSIBLE.
IN
THE EVENT PARENT OR BUYER USE THE CONSIGNED INVENTORIES TO MANUFACTURE PRODUCTS
FOR SELLER, PARENT OR BUYER SHALL PAY SELLER THE THEN STANDARD COSTS OF SUCH
INVENTORIES ON THE DATE OF PURCHASE THEREOF.
FOLLOWING THE CONSIGNMENT PERIOD,
SELLER MAY REMOVE THE CONSIGNED INVENTORY FROM THE FACILITY UPON REASONABLE
PRIOR WRITTEN NOTICE TO BUYER AND PARENT, AND SELLER SHALL REMOVE SUCH CONSIGNED
INVENTORY WITHIN A REASONABLE TIME FOLLOWING BUYER'S REQUEST TO SELLER TO REMOVE
SUCH CONSIGNED INVENTORY.
ARTICLE VII
CONDITIONS TO THE CLOSING
7.1
CONDITIONS TO PARENT'S AND BUYER'S OBLIGATION TO CLOSE.
THE
OBLIGATIONS OF PARENT AND BUYER HEREUNDER ARE SUBJECT TO THE FULFILLMENT OR
SATISFACTION ON, AND AS OF THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS (ANY
ONE OR MORE OF WHICH MAY BE WAIVED BY PARENT, BUT ONLY IN A WRITING SIGNED BY
PARENT):
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN ARTICLE III THAT ARE QUALIFIED AS TO
MATERIALITY OR MATERIAL ADVERSE EFFECT, OR IN SECTIONS 3.1, 3.2 OR 3.3 SHALL BE
TRUE AND CORRECT, AND THOSE THAT ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT
IN