ACQUISITION STATEMENT
AND THE ADSP ALLOCATION (AND, IN THE EVENT THAT NO SUCH CHANGES ARE PROPOSED IN
WRITING TO SELLER WITHIN FIVE (5) BUSINESS DAYS FOLLOWING PURCHASER'S RECEIPT OF
SUCH DOCUMENTS, PURCHASER WILL BE DEEMED TO HAVE AGREED TO AND ACCEPTED THE
ASSET ACQUISITION STATEMENT AND THE ADSP ALLOCATION). THE PARTIES WILL ENDEAVOR
IN GOOD FAITH TO RESOLVE ANY DIFFERENCES WITH RESPECT TO THE ASSET ACQUISITION
STATEMENT AND/OR THE ADSP ALLOCATION WITHIN FIFTEEN (15) DAYS AFTER SELLER'S
RECEIPT OF WRITTEN NOTICE OF OBJECTION FROM PURCHASER.
(D)
IF PURCHASER WITHHOLDS ITS CONSENT TO THE ALLOCATION REFLECTED IN
THE ASSET ACQUISITION STATEMENT OR THE ADSP ALLOCATION, AND PURCHASER AND SELLER
HAVE ACTED IN GOOD FAITH TO RESOLVE ANY DIFFERENCES WITH RESPECT TO ITEMS ON THE
ASSET ACQUISITION STATEMENT OR THE ADSP AND THEREAFTER ARE UNABLE TO RESOLVE ANY
DIFFERENCES THAT, IN THE AGGREGATE, ARE MATERIAL IN RELATION TO THE ADSP
ALLOCATION, THEN ANY REMAINING DISPUTED MATTERS WILL BE FINALLY AND CONCLUSIVELY
DETERMINED BY THE ARBITER. PROMPTLY, BUT NOT LATER THAN FIFTEEN (15) DAYS AFTER
ITS ACCEPTANCE OF APPOINTMENT HEREUNDER, THE ARBITER WILL DETERMINE (BASED
SOLELY ON PRESENTATION OF PURCHASER AND SELLER AND NOT BY INDEPENDENT REVIEW)
ONLY THOSE MATTERS IN DISPUTE AND WILL RENDER A WRITTEN REPORT AS TO THE
DISPUTED MATTERS AND THE RESULTING ADSP ALLOCATION OR OTHER ALLOCATION OR
DETERMINATION, WHICH REPORT SHALL BE CONCLUSIVE AND BINDING UPON THE PARTIES.
THE PARTIES SHALL, SUBJECT TO THE REQUIREMENTS OF APPLICABLE TAX LAW OR
ELECTION, FILE ALL TAX RETURNS AND REPORTS CONSISTENT WITH THE ALLOCATION
PROVIDED IN THE ASSET ACQUISITION STATEMENT AND THE ADSP ALLOCATION, OR, IF
APPLICABLE, THE DETERMINATION OF THE ARBITER. THE PARTIES SHALL BEAR EQUALLY THE
FEES AND EXPENSES OF THE ARBITER.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
SECTION 8.1
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. (A) THE
RESPECTIVE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER CONTAINED IN
ARTICLES III AND IV SHALL SURVIVE THE CLOSING UNTIL THE DATE THAT IS FIFTEEN
(15) MONTHS FROM THE CLOSING DATE; PROVIDED THAT THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 3.3(B) ("CAPITAL STRUCTURE") SHALL SURVIVE FOR
THE APPLICABLE STATUTE OF LIMITATIONS.
(B)
NEITHER SELLER NOR PURCHASER SHALL HAVE ANY LIABILITY WHATSOEVER
WITH RESPECT TO ANY REPRESENTATION AND WARRANTY UNLESS A CLAIM IS MADE HEREUNDER
PRIOR TO THE EXPIRATION OF THE APPLICABLE SURVIVAL PERIOD FOR SUCH
REPRESENTATION AND WARRANTY, IN WHICH CASE SUCH REPRESENTATION AND WARRANTY
SHALL SURVIVE AS TO SUCH CLAIM UNTIL SUCH CLAIM HAS BEEN FINALLY RESOLVED.
67
SECTION 8.2
INDEMNIFICATION BY SELLER. (A) SUBJECT TO THE
LIMITATIONS SET FORTH IN THIS ARTICLE VIII, AFTER THE CLOSING, SELLER AGREES TO
DEFEND AND INDEMNIFY PURCHASER AND EACH OF ITS OFFICERS AND DIRECTORS (THE
"PURCHASER INDEMNITEES") AND SAVE AND HOLD EACH OF THEM HARMLESS AGAINST ANY
LOSSES INCURRED BY THEM AS A RESULT OF: (I) ANY FAILURE OF ANY REPRESENTATION OR
WARRANTY MADE BY SELLER CONTAINED IN ARTICLE III TO BE TRUE AND CORRECT ON AND
AS OF THE CLOSING DATE (IT BEING AGREED THAT ANY MATERIALITY OR MATERIAL ADVERSE
EFFECT QUALIFICATION IN A