THE
DISAGREEMENT(S) SET FORTH IN THE ALLOCATION DISPUTE NOTICE (THE "ALLOCATION
DISAGREEMENTS") CANNOT BE RESOLVED WITHIN 30 CALENDAR DAYS AFTER THE DATE OF
RECEIPT OF THE DISPUTE NOTICE BY BUYERS, THE PARTIES AGREE TO PROMPTLY ENGAGE
THE SERVICES OF AN INDEPENDENT FIRM TO REVIEW THE BUYER ALLOCATION AND RESOLVE
ALL SUCH ALLOCATION DISAGREEMENTS.
NOT LATER THAN 15 CALENDAR DAYS AFTER
ENGAGING THE INDEPENDENT FIRM (THE "PRESENTATION DATE"), BUYERS AND SELLERS EACH
SHALL PRESENT OR CAUSE TO BE PRESENTED TO THE INDEPENDENT FIRM IN WRITING, AND
THE INDEPENDENT FIRM SHALL REVIEW AND CONSIDER, THEIR RESPECTIVE POSITIONS WITH
REGARD TO THE ALLOCATION DISAGREEMENTS.
SELLERS AND BUYERS SHALL USE THEIR
RESPECTIVE COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE INDEPENDENT FIRM TO
RENDER ITS DECISIONS ON THE ALLOCATION DISAGREEMENTS AS SOON AS IT IS REASONABLY
PRACTICABLE BUT NO LATER THAN THIRTY (30) CALENDAR DAYS AFTER THE PRESENTATION
DATE, INCLUDING BY PROMPTLY COMPLYING WITH ALL REASONABLE REQUESTS OF THE
INDEPENDENT FIRM FOR INFORMATION, PAPERS, BOOKS, RECORDS AND ACCESS TO RELEVANT
PERSONNEL AND OUTSIDE ACCOUNTANTS OF THE PARTIES.
THE DETERMINATION OF THE
INDEPENDENT FIRM REACHED IN ACCORDANCE WITH THIS SECTION 1.2(F)(II) SHALL BE
BINDING ON THE PARTIES, AND THE PURCHASE PRICE ALLOCATION SO DETERMINED BY THE
INDEPENDENT FIRM SHALL CONSTITUTE THE FINAL PURCHASE PRICE ALLOCATION.
(III)
SELLERS AND BUYERS SHALL FOLLOW AND USE SUCH ALLOCATION IN ALL
INCOME, SALES, REGISTRATION AND OTHER TAX RETURNS, FILINGS AND OTHER RELATED
REPORTS MADE BY THEM TO ANY GOVERNMENTAL ENTITIES.
THE PARTIES SHALL MAKE
APPROPRIATE FURTHER ADJUSTMENTS TO THE ALLOCATIONS IN THE FINAL PURCHASE PRICE
ALLOCATION SCHEDULE TO REFLECT ANY ADJUSTMENTS TO THE PURCHASE PRICE ARISING
AFTER PREPARATION AND DELIVERY TO SELLERS OF THE BUYER ALLOCATION.
(G)
WITHHOLDING.
BUYERS SHALL BE ENTITLED TO DEDUCT AND WITHHOLD OR
CAUSE TO BE DEDUCTED AND WITHHELD FROM AMOUNTS OTHERWISE PAYABLE TO ANY PERSON
PURSUANT TO THIS AGREEMENT SUCH AMOUNTS AS IT IS REQUIRED TO DEDUCT AND WITHHOLD
WITH RESPECT TO SUCH PAYMENTS UNDER ANY PROVISION OF FEDERAL, STATE, LOCAL OR
FOREIGN TAX LAW.
ANY AMOUNTS SO DEDUCTED AND WITHHELD WILL BE TREATED FOR ALL
PURPOSES OF THIS AGREEMENT AS HAVING BEEN PAID TO THE PERSON IN RESPECT OF WHICH
SUCH DEDUCTION AND WITHHOLDING WAS MADE.
12
1.3
ASSUMPTION OF LIABILITIES.
(A)
LIMITED LIABILITIES TO BE ASSUMED.
AS ADDITIONAL CONSIDERATION
FOR THE PURCHASE OF THE TRANSFERRED ASSETS, EFFECTIVE IMMEDIATELY AFTER THE
CLOSING DATE, IN ADDITION TO THE LIABILITIES AND OBLIGATIONS OF BUYERS UNDER THE
ANCILLARY AGREEMENTS, BUYERS SHALL ASSUME, PERFORM AND DISCHARGE THE FOLLOWING
(COLLECTIVELY, THE "ASSUMED OBLIGATIONS"):
(I)
ALL LIABILITIES AND OBLIGATIONS ACCRUING FROM, ARISING OUT OF OR
RELATING TO THE CONDUCT OR OPERATION OF THE BUSINESS BY BUYERS AND THEIR
AFFILIATES OR THE OWNERSHIP OR USE OF THE TRANSFERRED ASSETS BY BUYERS AND THEIR
AFFILIATES FOR THE PERIOD FOLLOWING THE CLOSING DATE (EXCEPT TO THE EXTENT SUCH
OBLIGATIONS OR LIABILITIES ARE THE RESPONSIBILITY OF SELLERS PURSUANT TO THIS
AGREEMENT OR ANY OF THE ANCILLARY AGREEMENTS, INCLUDING PURSUANT TO SELLERS'
INDEMNIFICATION OBLIGATIONS HEREUNDER OR THEREUNDER);
(II)
ALL LIABILITIES AND OBLIGATIONS OF THE BUSINESS