IS ACTUALLY AND MATERIALLY PREJUDICED BY SUCH FAILURE AND
(III) PURCHASER SHALL NOT RESOLVE SUCH TAX CLAIM WITHOUT SELLER'S PRIOR WRITTEN
CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. IN CONNECTION WITH
ANY TAX CLAIM, PURCHASER AND SELLER AND THEIR AFFILIATES SHALL FULLY COOPERATE
IN ASSISTING THE PARTY CONTROLLING THE TAX CLAIM TO EFFECTIVELY RESIST OR
RESOLVE SUCH CLAIM, INCLUDING PROVIDING REASONABLE ACCESS TO SUCH PERSONNEL,
DOCUMENTS AND RECORDS AS MAY BE NECESSARY TO RESISTING OR RESOLVING THE TAX
CLAIM.
(D)
RESOLUTION OF ALL TAX RELATED DISPUTES.
IF
SELLER AND PURCHASER CANNOT AGREE ON THE CALCULATION OF ANY AMOUNT RELATING TO
TAXES OR THE INTERPRETATION OR APPLICATION OF ANY PROVISION OFF THIS AGREEMENT
RELATING TO TAXES, SUCH DISPUTE SHALL BE RESOLVED BY A NATIONALLY RECOGNIZED
ACCOUNTING FIRM MUTUALLY ACCEPTABLE TO EACH OF SELLER AND PURCHASER, WHOSE
DECISION SHALL BE FINAL AND BINDING UPON ALL PERSONS INVOLVED AND WHOSE EXPENSES
SHALL BE SHARED EQUALLY BY SELLER AND PURCHASER.
7.9
Tax Effect of Indemnification Payments.
All indemnity payments made
by Seller to Purchaser or any of its Affiliates pursuant to this Agreement shall
be treated for all Tax purposes as adjustments to the consideration paid with
respect to the Shares.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED AT ANY TIME PRIOR TO THE CLOSING DATE AS PROVIDED BELOW:
(A)
BY THE MUTUAL WRITTEN CONSENT OF SELLER AND
PURCHASER;
(B)
BY EITHER SELLER OR PURCHASER IF THE SALE
AND TRANSFER OF THE SHARES PURSUANT TO ARTICLE I OF THIS AGREEMENT SHALL NOT
HAVE BEEN CONSUMMATED BY MARCH 31, 2005 (THE "END DATE"); PROVIDED, HOWEVER,
THAT THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 8.1(B) SHALL NOT
BE AVAILABLE TO ANY PARTY WHOSE ACTION OR FAILURE TO ACT HAS BEEN A PRINCIPAL
CAUSE OF OR RESULTED IN THE FAILURE OF THE SALE AND TRANSFER OF THE SHARES
PURSUANT TO ARTICLE I OF THIS AGREEMENT TO OCCUR ON OR BEFORE SUCH DATE AND SUCH
ACTION OR FAILURE TO ACT CONSTITUTES A BREACH OF THIS AGREEMENT;
(C)
BY EITHER SELLER OR PURCHASER IF A
GOVERNMENTAL ENTITY SHALL HAVE ISSUED AN ORDER, DECREE OR RULING OR TAKEN ANY
OTHER ACTION (INCLUDING THE FAILURE TO HAVE TAKEN AN ACTION), IN ANY CASE HAVING
THE EFFECT OF PERMANENTLY RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING THE
SALE AND TRANSFER OF THE SHARES, WHICH ORDER, DECREE, RULING OR OTHER ACTION IS
FINAL AND NONAPPEALABLE;
(D)
BY SELLER, UPON A BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT ON THE PART OF PURCHASER SET
FORTH IN THIS AGREEMENT, OR IF ANY REPRESENTATION OR WARRANTY OF PURCHASER SHALL
HAVE BECOME UNTRUE, IN EITHER CASE SUCH THAT THE CONDITIONS SET FORTH IN
SECTION 6.2(A) OR SECTION 6.2(B) WOULD NOT BE SATISFIED AS OF THE TIME OF SUCH
BREACH OR AS OF THE TIME SUCH REPRESENTATION OR WARRANTY SHALL HAVE BECOME
UNTRUE, PROVIDED THAT IF SUCH INACCURACY IN PURCHASER'S REPRESENTATIONS AND
WARRANTIES OR BREACH BY PURCHASER IS CURABLE BY PURCHASER PRIOR TO THE END DATE
THROUGH THE EXERCISE