BE UNABLE TO RESOLVE ANY SUCH
DISPUTE WITHIN THE TEN (10) BUSINESS DAY PERIOD, EITHER PURCHASER OR SELLER BY
WRITTEN NOTICE TO THE OTHER MAY DEMAND ARBITRATION IN ACCORDANCE WITH THE
PROCEDURES SET FORTH IN SECTION 9.1 HEREOF.
7
(V)
IF NO MILESTONE DISPUTE NOTICE IS DELIVERED WITHIN THE TIMEFRAME
SET FORTH ABOVE, THEN SELLER'S DETERMINATION THAT THE MILESTONE HAS BEEN
ACHIEVED, AND THAT SOME OR ALL OF THE APPLICABLE MILESTONE PAYMENT IS DUE
HEREUNDER, SHALL BE DEEMED TO BE ACCEPTED AND PURCHASER SHALL PAY TO SELLER
THOSE AMOUNTS SET FORTH IN THE MILESTONE ASSESSMENT NOTICE.
(C)
RIGHTS OF SET-OFF.
PURCHASER SHALL HAVE THE RIGHT TO WITHHOLD AND
SET-OFF AGAINST ANY AMOUNT OTHERWISE DUE TO BE PAID (BUT NOT YET PAID) PURSUANT
TO THIS SECTION 1.5 THE AMOUNT OF ANY LOSSES TO WHICH ANY PURCHASER INDEMNIFIED
PARTY MAY BE ENTITLED UNDER ARTICLE VIII HEREOF OR ANY OTHER AGREEMENT ENTERED
INTO PURSUANT TO THIS AGREEMENT (THE "RIGHTS OF SET-OFF"); PROVIDED, HOWEVER,
THAT THE FOREGOING SHALL NOT APPLY (I) TO THE SAME LOSS MORE THAN ONCE OR
(II) TO THE EXTENT ANY SUCH LOSS IS ADJUSTED AS PROVIDED FOR IN
SECTION 8.4(B) HEREOF.
(D)
ACKNOWLEDGEMENT OF SELLER AND PURCHASER.
SELLER AND PURCHASER
ACKNOWLEDGE
THAT (I) (A) UPON THE TECHNOLOGY CLOSING AND SUBJECT TO PURCHASER'S
EXPRESS OBLIGATIONS UNDER THE MANUFACTURING AGREEMENT, PURCHASER HAS THE RIGHT
TO OPERATE THE BUSINESS AND PURCHASER'S OTHER BUSINESSES IN ANY WAY THAT
PURCHASER DEEMS APPROPRIATE IN PURCHASER'S SOLE DISCRETION, AND (B) SUBJECT TO
PURCHASER'S EXPRESS OBLIGATIONS UNDER THE MANUFACTURING AGREEMENT, PURCHASER HAS
NO OBLIGATION TO OPERATE THE BUSINESS IN ORDER TO ACHIEVE ANY MILESTONE OR TO
ACHIEVE OR MAXIMIZE ANY APPLICABLE MILESTONE PAYMENT, (II) THERE IS NO ASSURANCE
THAT THE SELLER WILL ACHIEVE ALL OR ANY MILESTONES OR THAT PURCHASER WILL
ACHIEVE THE NET SALES THRESHOLD, (III) THE PARTIES SOLELY INTEND THE EXPRESS
PROVISIONS OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO GOVERN THEIR
CONTRACTUAL RELATIONSHIP, (IV) THE RIGHT OF THE SELLER TO PAYMENT OF ANY
APPLICABLE MILESTONE PAYMENT, IF ANY, SHALL NOT BEAR ANY INTEREST UNLESS NOT
TIMELY PAID, AND (V) THE RIGHT OF THE SELLER TO A PORTION OF ANY APPLICABLE
MILESTONE PAYMENT, IF ANY, SHALL NOT BE REPRESENTED BY A CERTIFICATE OR OTHER
INSTRUMENT, SHALL NOT REPRESENT AN OWNERSHIP INTEREST OF SELLER IN PURCHASER OR
THE BUSINESS AND SHALL NOT ENTITLE SELLER TO ANY RIGHTS COMMON TO ANY HOLDER OF
ANY DEBT OR EQUITY SECURITY OF PURCHASER.
THE SELLER HEREBY WAIVES, ON ITS
BEHALF AND ON BEHALF OF ANY OF ITS SUCCESSORS AND ASSIGNS, ANY FIDUCIARY DUTY
(BUT, FOR AVOIDANCE OF DOUBT, NOT ANY IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING) OF PURCHASER TO SELLER, WITH RESPECT TO THE MATTERS CONTEMPLATED BY
THIS SECTION 1.5.
Section 1.6
Withholding.
Purchaser shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement to
Seller
such amounts as Purchaser is required to deduct and withhold under the
Code, or any provisions of state or local Tax law, with respect to