SAME KIND, OR SUITABLE FOR THE SAME PURPOSES, AS SUCH UNUSED INVENTORIES
ACQUIRED BY BUYER OR ITS AFFILIATES AFTER THE DATE OF THIS AGREEMENT.
(E)
BUYER MAY EXERCISE ITS PUT RIGHT DESCRIBED IN SECTION 6.2(A)
SOLELY BY THE DELIVERY, WITHIN THE FIRST EXERCISE PERIOD OR THE SECOND EXERCISE
PERIOD, AS THE CASE MAY BE, TO SELLER OF NOTICE TO SUCH EFFECT THAT (I) SETS
FORTH (A) A SPECIFIC DESCRIPTION OF ANY UNUSED INVENTORIES AND (B) THE ORIGINAL
PURCHASE PRICE LESS ANY AMOUNT PAID BY SELLER TO BUYER WITH RESPECT TO SUCH
UNUSED INVENTORY FOLLOWING THE CLOSING DATE (SUCH AS A "BUY DOWN") OF SUCH
INVENTORIES AS OF THE CLOSING DATE (THE "INVENTORY REPURCHASE PRICE") AND
(II) IS ACCOMPANIED BY AN OFFICER'S CERTIFICATE OF BUYER THAT CERTIFIES THAT
SUCH UNUSED INVENTORIES HAVE BEEN IDENTIFIED, AND THE INVENTORY REPURCHASE PRICE
THEREOF HAS BEEN CALCULATED, IN ACCORDANCE WITH THIS SECTION 6.2.
WITHIN TEN
(10) BUSINESS DAYS AFTER THE RECEIPT SELLER OF SUCH NOTICE, SELLER SHALL, IF IT
OBJECTS TO SUCH NOTICE, DELIVER TO BUYER NOTICE THAT SELLER DISPUTES BUYER'S
IDENTIFICATION OF THE UNUSED INVENTORIES OR THE CALCULATION OF THE INVENTORY
REPURCHASE PRICE.
IF SELLER FAILS TO TIMELY DELIVER TO BUYER SUCH NOTICE WITHIN
SUCH 10 BUSINESS DAY PERIOD, THEN SELLER SHALL BE DEEMED TO HAVE ACCEPTED THE
EXERCISING PARTY'S IDENTIFICATION OF THE UNUSED INVENTORIES AND CALCULATION OF
THE INVENTORY REPURCHASE PRICE.
IF SELLER TIMELY DELIVERS TO THE BUYER SUCH
NOTICE WITHIN SUCH 10 BUSINESS DAY PERIOD, THEN THE PARTIES SHALL ATTEMPT IN
GOOD FAITH TO REACH A RESOLUTION OF SUCH DISAGREEMENT.
IF SUCH DISAGREEMENT IS
NOT RESOLVED WITHIN FIVE (5) DAYS AFTER DELIVERY OF SELLER'S NOTICE, THE
INDEPENDENT ACCOUNTANTS SHALL BE DIRECTED TO COMPUTE THE AMOUNT OF THE UNUSED
INVENTORIES AND THE INVENTORY REPURCHASE PRICE AS PROMPTLY AS PRACTICABLE AND
SUCH COMPUTATION SHALL BE BINDING UPON THE PARTIES HERETO.
THE EXPENSES OF
INDEPENDENT ACCOUNTANT IN CONNECTION WITH SUCH COMPUTATION SHALL BE BORNE
EQUALLY BY BUYER AND SELLER.
31
(F)
PAYMENT.
SELLER SHALL PAY TO BUYER THE AMOUNT OF THE INVENTORY
REPURCHASE PRICE AS FINALLY DETERMINED IN THIS SECTION WITHIN FIVE (5) BUSINESS
DAYS OF ANY SUCH DETERMINATION AND BUYER SHALL TRANSFER TITLE OF THE UNUSED
INVENTORY TO SELLER.
THE UNUSED INVENTORY SHALL BE IN SUBSTANTIALLY THE SAME
CONDITION (OTHER THAN CHANGES DUE TO THE PASSAGE OF TIME) AS WHEN PURCHASED BY
BUYER FREE AND CLEAR OF ANY LIENS (EXCEPT FOR PERMITTED LIENS).
EXCEPT AS SET
FORTH IN THE FOREGOING SENTENCE, BUYER MAKES NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE UNUSED INVENTORIES.
6.3
REPURCHASE OF INVENTORY AND EQUIPMENT UNDER CERTAIN CIRCUMSTANCES.
(A)
IN THE EVENT THAT DURING THE TERM OF THE SUPPLY AGREEMENT,
(I) SELLER SELLS, TRANSFERS OR OTHERWISE DISPOSES OF ITS DSG BUSINESS, ITS
SYSTEMS BUSINESS OR ANY OTHER BUSINESS UNIT OF SELLER BEING SUPPLIED BY BUYER
PURSUANT TO THE SUPPLY AGREEMENT TO A THIRD PARTY, OTHER THAN BUYER OR PARENT,
OR AN AFFILIATE OF EITHER (IN EACH CASE, AN "AFFECTED BUSINESS") AND (II) BOTH
(1) THE ACQUIRER OF THE AFFECTED