PARENT WOULD BE OBLIGATED TO TAKE UNDER THIS SECTION 4.02(C) IF
PARENT HAD EXECUTED AND DELIVERED THIS AGREEMENT AS BUYER.
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
17
(D)
WITH RESPECT TO EACH CALENDAR QUARTER FROM AND AFTER THE CLOSING
UNTIL THE NET SALES MILESTONE TERMINATION DATE, BUYER SHALL DELIVER TO SELLER,
WITHIN FIFTY (50) DAYS AFTER THE END OF SUCH CALENDAR QUARTER (OTHER THAN THE
FOURTH QUARTER) AND WITHIN SEVENTY (70) DAYS AFTER THE END OF THE FOURTH
CALENDAR QUARTER OF EACH YEAR, A REPORT, CERTIFIED BY AN OFFICER OF BUYER AND
SETTING FORTH IN REASONABLE DETAIL A CALCULATION OF THE NET SALES FOR SUCH
CALENDAR QUARTER.
(E)
FROM AND AFTER THE CLOSING DATE UNTIL THE NET SALES MILESTONE
TERMINATION DATE, BUYER SHALL NOT CONSUMMATE A TRANSACTION INVOLVING A SALE OR
OTHER TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE PURCHASED ASSETS THAT DOES NOT
CONSTITUTE A CHANGE OF CONTROL TRANSACTION WITHOUT THE PRIOR WRITTEN CONSENT OF
SELLER, WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD.
(F)
THE PROVISIONS OF THIS SECTION 4.02 SHALL SURVIVE UNTIL THE NET
SALES MILESTONE TERMINATION DATE, EXCEPT THAT THE RIGHT OF SELLER TO CONDUCT AN
AUDIT OF BUYER'S BOOKS AND RECORDS PURSUANT TO SECTION 4.02(B) SHALL CONTINUE
FOR A PERIOD OF FIVE (5) YEARS AFTER THE NET SALES MILESTONE TERMINATION DATE
AND THE OBLIGATION OF BUYER PURSUANT TO SECTION 4.02(D) SHALL CONTINUE UNTIL A
REPORT RELATING TO THE QUARTER IN WHICH THE NET SALES MILESTONE TERMINATION DATE
OCCURS HAS BEEN DELIVERED.
(G)
BUYER AND SELLER EACH AGREES THAT THE NET SALES MILESTONE
PAYMENTS, IF ANY, ARE PART OF THE PURCHASE PRICE FOR THE PURCHASED ASSETS FOR
TAX PURPOSES, AND EACH AGREES TO TREAT THE SAME AS SUCH AS REQUIRED BY
APPLICABLE TAX LAW.
SECTION 4.03
ALLOCATION OF PURCHASE PRICE.
(A)
AS PROMPTLY AS REASONABLY PRACTICAL, BUT IN NO EVENT LATER THAN
SIXTY (60) DAYS AFTER THE CLOSING DATE, SELLER SHALL DELIVER TO BUYER A SCHEDULE
(THE "ALLOCATION STATEMENT") REFLECTING THE ALLOCATION OF THE BASE PURCHASE
PRICE AMONG THE PURCHASED ASSETS IN A MANNER THAT IS CONSISTENT WITH THE
ALLOCATION METHODOLOGY PROVIDED BY SECTION 1060 OF THE CODE AND THE TREASURY
REGULATIONS PROMULGATED THEREUNDER (THE "ALLOCATION"). WITHIN THIRTY (30) DAYS
FOLLOWING THE RECEIPT BY BUYER OF THE ALLOCATION STATEMENT, BUYER SHALL REVIEW
THE ALLOCATION. IF THE ALLOCATION STATEMENT IS NOT OBJECTED TO BY BUYER (BY
WRITTEN NOTICE TO SELLER) BY THE EXPIRATION OF SUCH THIRTY (30) DAY PERIOD, IT
SHALL BE DEEMED AGREED UPON BY THE PARTIES AND SHALL BE DEEMED CONCLUSIVE FOR
PURPOSES OF THE ALLOCATION.
(B)
EXCEPT TO THE EXTENT REQUIRED TO COMPLY WITH AUDIT DETERMINATIONS
OF ANY TAX AUTHORITY WITH JURISDICTION OVER A PARTY, BUYER AND SELLER SHALL
REPORT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FOR ALL REQUIRED FEDERAL
INCOME TAX AND ALL OTHER TAX PURPOSES IN A