Purchase Price; Allocation of Purchase Price. (a) Subject to the terms and conditions of this Agreement, the purchase price for the Interests and the Purchased Assets (other than the Specified OUS Assets) (such amount, the “Purchase Price”) is payable as follows: (i) Buyer shall pay to Parent at the Closing (the “Closing Payment”), for the benefit of Parent and Sellers, cash in an amount equal to $708,500,000, plus the Estimated Cash, minus the Estimated Indebtedness, plus the Estimated Working Capital Excess, if applicable, or minus the Estimated Working Capital Deficit, if applicable, plus the Estimated Net Intercompany Receivable, if applicable, or minus the Estimated Net Intercompany Payable, if applicable, plus any applicable VAT in relation to the Purchase Price as provided in Section 7.08, minus the Delayed Payment (as defined in Section 2.03(a)(ii)); (ii) At the Delayed Closing, Buyer shall pay, or shall cause to be paid, to the applicable Seller, the applicable payment set forth opposite such Seller’s name on Section 2.03(a)(ii)Section 2.02(c)(iii) of the Seller Disclosure Schedule (the “Delayed Payment”); and (iii) Buyer shall assume the Initial Assumed Liabilities at the Closing (or any Delayed Closing as provided in Section 2.06(b)) and shall assume the applicable Later Assumed Liabilities at the applicable Later Closing (or, with respect to any Liabilities assumed at a Delayed Transfer Date pursuant to Article VI or Appendix VI, such Transfer Date). (b) The Closing Payment shall be paid at the Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than three (3) Business Days prior to the Closing Date. The Delayed Payment shall be paid at the Delayed Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than one (1) Business Days prior to the Delayed Closing Date. (c) As soon as practicable, and in any event not later than one hundred eighty (180) days after the Closing Date, Parent shall provide for Buyer’s review and comments a proposed allocation of the Purchase Price, as adjusted for all relevant tax purposes to take into account the Assumed Liabilities, by country or by Transferred Subsidiary as applicable, and among the Purchased Assets, the Assumed Liabilities and the assets of the Transferred Subsidiaries by asset category in accordance with the principles of Section 1060 of the Code and other applicable Law, except that if a section 338(h)(10) election is not made, no allocation shall be made to the assets of a Transferred Subsidiary that is a domestic corporation for purposes of the Code (the “Proposed Allocation”). Buyer shall have the right to consent or object to the Proposed Allocation during the thirty (30) day period immediately following delivery of the Proposed Allocation. If Buyer delivers a notice of objection to Parent during that thirty (30) day period, Parent and Buyer shall negotiate in good faith to resolve their differences with respect to the Proposed Allocation. If Buyer makes no objection during that thirty (30) day period or Parent and Buyer agree on an allocation within the thirty (30) day period following Buyer’s delivery of such a notice of objection, the Proposed Allocation or the agreed allocation, as applicable, shall be final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Agreed-Upon Allocation”). If Parent and Buyer are unable to reach agreement on the Proposed Allocation within thirty (30) days following the delivery to Parent of Buyer’s notice of objection to the Proposed Allocation, the allocation shall be determined by an internationally-recognized independent accounting firm mutually selected by Buyer and Parent (the “Allocation Accounting Firm”) using customary valuation methodologies; provided, however, that the Allocation Accounting Firm shall make its determination within thirty (30) days following the date on which the Allocation Accounting Firm is selected pursuant to this Section 2.03(c). The determination made by the Allocation Accounting Firm of the allocation shall be, absent manifest error, final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Final Allocation”). All negotiations pursuant to this this Section 2.03(c) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations and submissions to the Allocation Accounting Firm, and the dispute resolution proceedings under this Section 2.03(c), shall be treated as confidential information. The fees and expenses of the Allocation Accounting Firm for its services rendered pursuant to this Section 2.03(c) shall be borne by Parent, on the one hand, and Buyer, on the other, in inverse proportion as each shall prevail on the dollar amounts of such disputed items so submitted to the Allocation Accounting Firm as provided in this Section 2.03(c). The Agreed-Upon Allocation or Final Allocation, as applicable, may be revised by mutual agreement between the Buyer and Parent, from time to time, prior to and following the Closing so as to reflect any matters that need updating (including adjustments to the Purchase Price under Article X, if any). (d) Each of Parent, Buyer and each of their respective Affiliates shall prepare and file, and cause its Affiliates to prepare and file, its Tax Returns, including Form 8023 and Form 8594 if applicable, on a basis consistent with the Agreed-Upon Allocation or Final Allocation, as applicable. None of Parent, Buyer or their respective Affiliates shall take any position inconsistent with the Agreed-Upon Allocation or Final Allocation, as applicable, in any Tax Return, in any refund claim for any Tax, in any litigation or administrative proceeding relating to any Tax, or otherwise unless required by final determination by an applicable Taxation
Appears in 1 contract
Purchase Price; Allocation of Purchase Price. (a) Subject In consideration of the transfer, conveyance and assignment by the Company to the terms Buyer of the Assets to be sold and conditions the execution of the additional related agreements specified in this Agreement, Buyer agrees to pay to the Company an aggregate purchase price for (the Interests and the Purchased Assets (other than the Specified OUS Assets) (such amount, the “"Purchase Price”) is payable as follows:
(i) Buyer shall pay to Parent at the Closing (the “Closing Payment”), for the benefit of Parent and Sellers, cash in an amount equal to $708,500,000, plus the Estimated Cash, minus the Estimated Indebtedness, plus the Estimated Working Capital Excess, if applicable, or minus the Estimated Working Capital Deficit, if applicable, plus the Estimated Net Intercompany Receivable, if applicable, or minus the Estimated Net Intercompany Payable, if applicable, plus any applicable VAT in relation to the Purchase Price as provided in Section 7.08, minus the Delayed Payment (as defined in Section 2.03(a)(ii));
(ii) At the Delayed Closing, Buyer shall pay, or shall cause to be paid, to the applicable Seller, the applicable payment set forth opposite such Seller’s name on Section 2.03(a)(ii)Section 2.02(c)(iii") of the Seller Disclosure Schedule Two Million Four Hundred Seventy-Five Thousand Dollars (the “Delayed Payment”); and
(iii) Buyer shall assume the Initial Assumed Liabilities at the Closing (or any Delayed Closing as provided in Section 2.06(b)) and shall assume the applicable Later Assumed Liabilities at the applicable Later Closing (or, with respect to any Liabilities assumed at a Delayed Transfer Date pursuant to Article VI or Appendix VI, such Transfer Date$2,475,000.00).
(b) The Closing Payment Purchase Price shall be paid to the Company at the Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than three (3) Business Days prior to the Closing Date. The Delayed Payment shall be paid at the Delayed Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than one (1) Business Days prior to the Delayed Closing Date.
(c) As soon as practicablecash, and in any event not later than one hundred eighty (180) days after the Closing Date, Parent shall provide for Buyer’s review and comments a proposed allocation of the Purchase Price, as adjusted for all relevant tax purposes to take into account the Assumed Liabilities, by country or by Transferred Subsidiary as applicable, and among the Purchased Assets, the Assumed Liabilities and the assets of the Transferred Subsidiaries by asset category in accordance with the principles of Section 1060 of the Code and other applicable Law, except that if a section 338(h)(10) election is not made, no allocation shall be made to the assets of a Transferred Subsidiary that is a domestic corporation for purposes of the Code (the “Proposed Allocation”). Buyer shall have the right to consent or object to the Proposed Allocation during the thirty (30) day period immediately following delivery of the Proposed Allocation. If Buyer delivers a notice of objection to Parent during that thirty (30) day period, Parent and Buyer shall negotiate in good faith to resolve their differences with respect to the Proposed Allocation. If Buyer makes no objection during that thirty (30) day period or Parent and Buyer agree on an allocation within the thirty (30) day period following Buyer’s delivery of such a notice of objection, the Proposed Allocation or the agreed allocation, as applicable, shall be final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Agreed-Upon Allocation”). If Parent and Buyer are unable to reach agreement on the Proposed Allocation within thirty (30) days following the delivery to Parent of Buyer’s notice of objection to the Proposed Allocation, the allocation shall be determined by an internationally-recognized independent accounting firm mutually selected by Buyer and Parent (the “Allocation Accounting Firm”) using customary valuation methodologies; provided, however, that One Hundred and Twenty Five Thousand Dollars ($125,000) of the Allocation Accounting Firm shall make its determination within thirty Purchase Price (30the "Escrowed Cash") days following will be delivered to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as escrow agent (the date on which "Escrow Agent"), to be held in escrow for a period of one (1) year to reimburse the Allocation Accounting Firm is selected Buyer for any amounts owed to the Buyer pursuant to this Section 2.03(c). The determination made by Agreement, including, without limitation, pursuant to Article VII herein, pursuant to the Allocation Accounting Firm terms of the allocation shall beEscrow Agreement to be entered into among the Escrow Agent, absent manifest error, final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Final Allocation”). All negotiations pursuant to this this Section 2.03(c) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations and submissions to the Allocation Accounting Firm, and the dispute resolution proceedings under this Section 2.03(c), shall be treated as confidential information. The fees and expenses of the Allocation Accounting Firm for its services rendered pursuant to this Section 2.03(c) shall be borne by Parent, on the one hand, and Buyer, on the other, in inverse proportion as each shall prevail on the dollar amounts of such disputed items so submitted to the Allocation Accounting Firm as provided in this Section 2.03(c). The Agreed-Upon Allocation or Final Allocation, as applicable, may be revised by mutual agreement between the Buyer and Parent, from time to time, prior to and following the Closing so Sellers in the form attached hereto as to reflect any matters that need updating Exhibit 1.04(b) (including adjustments to the "Escrow Agreement"). ---------------
(c) The Purchase Price under Article X, if any).
(dand other relevant items shall be allocated among the Assets in accordance with Exhibit 1.04(c) Each of Parent, and otherwise in such manner as --------------- the Buyer and each of their respective Affiliates the Sellers shall prepare agree as soon as practicable. For all tax purposes, the Buyer and file, and cause its Affiliates the Sellers agree to prepare and file, its Tax Returns, including Form 8023 and Form 8594 if applicable, on report the transactions contemplated in this Agreement in a basis manner consistent with the Agreed-Upon Allocation or Final Allocationterms of this Agreement, as applicable. None including the allocation under Exhibit 1.04(c), and agree --------------- that none of Parent, Buyer or their respective Affiliates shall them will take any position inconsistent with the Agreed-Upon Allocation or Final Allocation, as applicable, therewith in any Tax Returntax return, in any refund claim for any Taxclaim, in any litigation or administrative proceeding relating to any Taxlitigation, or otherwise unless required by final determination by an applicable Taxationotherwise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Opta Food Ingredients Inc /De)
Purchase Price; Allocation of Purchase Price. (a) Subject to the terms and conditions of this Agreementadjustment pursuant to Section 2.06 and/or Article VIII, the purchase price in full payment for the Interests and the Purchased Assets (other than the Specified OUS Assets) (such amount, the “Purchase Price”) is payable as followsPurchaser shall, or shall cause one of its Affiliates to:
(i) Buyer shall pay to Parent at the Seller cash in the amount of the Closing (the “Closing Payment”), for the benefit of Parent and Sellers, cash in an amount equal to $708,500,000, plus the Estimated Cash, minus the Estimated Indebtedness, plus the Estimated Working Capital Excess, if applicable, or minus the Estimated Working Capital Deficit, if applicable, plus the Estimated Net Intercompany Receivable, if applicable, or minus the Estimated Net Intercompany Payable, if applicable, plus any applicable VAT in relation to the Purchase Price as provided in Section 7.08, minus the Delayed Payment (as defined in Section 2.03(a)(ii));
(ii) At the Delayed Closing, Buyer shall pay, or shall cause to be paid, to the applicable Seller, the applicable payment set forth opposite such Seller’s name on Section 2.03(a)(ii)Section 2.02(c)(iii) of the Seller Disclosure Schedule (the “Delayed Payment”); and
(iii) Buyer shall assume the Initial Assumed Liabilities at the Closing (or any Delayed Closing as provided in Section 2.06(b)) and shall assume the applicable Later Assumed Liabilities at the applicable Later Closing (or, with respect to any Liabilities assumed at a Delayed Transfer Date pursuant to Article VI or Appendix VI, such Transfer Date).
(b) The Closing Payment shall be paid Cash Proceeds at the Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than three funds;
(3ii) Business Days prior pay to the Seller the Additional Closing Date. The Delayed Payment shall be paid at the Delayed Closing in accordance with Section 2.04(e);
(iii) deposit cash in the amount of the Escrow Amount into the Escrow Account at the Closing pursuant to wire instructions delivered by wire transfer of immediately available funds the Escrow Agent to a bank account designated to Buyer in writing by Parent no later than one Purchaser;
(1iv) Business Days prior pay to the Delayed Closing DateSeller the contingent earnout payment amounts set forth on Annex I hereto, upon and subject to the achievement of performance metrics in accordance with the terms and covenants, and subject to the conditions, set forth on Annex I;
(v) pay to each person holding any Indebtedness of the Seller the amount, and pursuant to wire instructions, set forth in the applicable payoff letter described in Section 2.07(b)(vi); and
(vi) pay to the Seller the contingent payment amounts set forth on Annex II hereto, in accordance with the terms and covenants, and subject to the conditions, set forth on Annex II.
(b) The amounts set forth in clauses (i), (ii), (iii), (iv), (v) and (vi) of Section 2.04(a) (collectively, the “Cash Purchase Price”), together with the Assumed Liabilities, are sometimes collectively referred to herein as the “Purchase Price.”
(c) As soon as practicable, Purchaser and in any event not later than one hundred eighty (180) days after the Closing Date, Parent Seller shall provide for Buyer’s review and comments a proposed allocation of allocate the Purchase Price, as adjusted for any Earnout Consideration (to the extent actually paid), any Settlement Consideration (to the extent actually paid) and all other applicable capitalized costs and other relevant tax purposes to take into account the Assumed Liabilities, by country or by Transferred Subsidiary as applicable, and items among the Purchased Assets, the Assumed Liabilities Assets and the assets of the Transferred Subsidiaries by asset category covenants set forth in Section 5.03 in accordance with the principles of rules under Section 1060 of the Code and other applicable Law, except that if a section 338(h)(10) election is not made, no the Regulations promulgated thereunder and the principles set forth in Schedule Section 2.04(c). Purchaser shall prepare and deliver the allocation shall be made to the assets of a Transferred Subsidiary that is a domestic corporation for purposes of the Code (the “Proposed Allocation”). Buyer Seller and Purchaser shall have the right to consent or object prepare and deliver to the Proposed Allocation during the thirty (30) day period immediately following delivery of the Proposed Allocation. If Buyer delivers a notice of objection to Parent during that thirty (30) day period, Parent and Buyer shall negotiate in good faith to resolve their differences with respect to the Proposed Allocation. If Buyer makes no objection during that thirty (30) day period or Parent and Buyer agree on an allocation within the thirty (30) day period following Buyer’s delivery of such a notice of objection, the Proposed Allocation or the agreed allocation, as applicable, shall be final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Agreed-Upon Allocation”). If Parent and Buyer are unable to reach agreement on the Proposed Allocation within thirty (30) days following the delivery to Parent of Buyer’s notice of objection to the Proposed Allocation, the allocation shall be determined by an internationally-recognized independent accounting firm mutually selected by Buyer and Parent (the “Allocation Accounting Firm”) using customary valuation methodologies; provided, however, that the Allocation Accounting Firm shall make its determination within thirty (30) days following the date on which the Allocation Accounting Firm is selected pursuant to this Section 2.03(c). The determination made by the Allocation Accounting Firm of the allocation shall be, absent manifest error, final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Final Allocation”). All negotiations pursuant to this this Section 2.03(c) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations and submissions to the Allocation Accounting Firm, and the dispute resolution proceedings under this Section 2.03(c), shall be treated as confidential information. The fees and expenses of the Allocation Accounting Firm for its services rendered pursuant to this Section 2.03(c) shall be borne by Parent, on the one hand, and Buyer, on the other, in inverse proportion as each shall prevail on the dollar amounts of such disputed items so submitted to the Allocation Accounting Firm as provided in this Section 2.03(c). The Agreed-Upon Allocation or Final Allocation, as applicable, may be revised by mutual agreement between the Buyer and ParentSeller, from time to time, prior to and following the Closing revised or supplemental allocations so as to reflect report any matters that may need updating (including adjustments to the Purchase Price adjustments and the payment of any Earnout Consideration and Settlement Consideration) as may be required. Purchaser and the Seller Parties shall file all Tax Returns consistent with the allocation determined under Article Xthis Section 2.04(c) and no party hereto shall take any position for Tax purposes inconsistent with such allocation; provided, if any)that the parties acknowledge that Purchaser and its Affiliates may use a different allocation for financial reporting purposes.
(d) Each Purchaser (or any of Parentits agents or Affiliates, Buyer as the case may be) shall be entitled to deduct and each withhold from any payment pursuant to this Agreement such amounts as are required to be withheld under the Code or any other applicable Tax Law. To the extent amounts are so withheld, such withheld amounts shall be treated for all purposes of their respective Affiliates this Agreement as having been paid to the Person in respect of whom the withholding was made. Purchaser shall prepare consult with the Seller in determining the amount of any withholding Taxes prior to deducting or withholding from any payment in respect of such Taxes.
(e) If Purchaser elects to make payments of any portion of the Purchase Price permitted to be paid using shares of Purchaser Common Stock pursuant to Section 2.04(a)(ii) or Section 2.04(a)(iv), provided, that the Purchaser certifies in writing on the date of issuance that: (x) the shares of Purchaser Common Stock issuable pursuant to Section 2.04(a)(iv) on such date are duly and filevalidly authorized and issued and fully paid and nonassessable, free and clear of any Encumbrances other than transfer restrictions under applicable securities Laws and (y) the representations and warranties set forth in Section 4.06 are true and correct as of the date of such payments as if made on and as of such date. Purchaser shall provide the Seller with written notice of such election, which notice in the case of Purchaser Common Stock issued pursuant to Section 2.04(a)(iv) on such date shall contain Purchaser’s certification as detailed in the previous sentence, and cause its Affiliates Purchaser shall issue a number of shares of Purchaser Common Stock equal to prepare such portion of the Purchase Price divided by the Purchaser Stock Price calculated as of the date of such issuance. Evidence of any such issuance of shares shall be delivered to the Seller as promptly as practical following such issuance. No fraction of a share of Purchaser Common Stock shall be issued, but in lieu thereof, the Seller shall receive from Purchaser an amount of cash (rounded to the nearest whole cent) equal to the product of (i) such fraction and file(ii) the Purchaser Stock Price. In no event shall the aggregate number of Issued Shares exceed a number of shares equal to 19.9% of the number of shares of Purchaser Common Stock outstanding immediately prior to the Closing or at the time of any issuance of any Issued Shares (the “19.9% Threshold”). In the event that the number of shares of Purchaser Common Stock otherwise comprising the Issued Shares exceeds the 19.9% Threshold, its Tax Returnsthe number of shares of Purchaser Common Stock issued as part of the Purchase Price will be cut back to the 19.9% Threshold and Purchaser will pay any such excess consideration in cash. At the time of any issuance of Issued Shares, including Form 8023 the Seller hereby represents and Form 8594 if applicablewarrants that the representations and warranties in Section 3.27 are, and such issuance shall be conditioned on a basis consistent with the Agreed-Upon Allocation or Final Allocationrepresentations and warranties in Section 3.27 being, true and correct in all respects as applicableof the date of such issuance.
(f) Seller acknowledges and agrees that prior to the Closing, JBC’s equity interest in RTS was purchased by the Seller. None of ParentFollowing the Closing, Buyer or their respective Affiliates the Seller shall take be responsible for and shall make any position inconsistent with the Agreed-Upon Allocation or Final Allocation, as applicable, in any Tax Return, in any refund claim for any Tax, in any litigation or administrative proceeding relating and all payments to any Tax, or otherwise unless JBC required by final determination by an applicable Taxationpursuant to such purchase.
Appears in 1 contract
Purchase Price; Allocation of Purchase Price. (a) Subject In consideration of Seller's transfer of good and marketable title to, and delivery of, the Purchased Assets to Buyer, effective upon the Closing, Buyer shall (i) pay to Seller in cash at the Closing an amount equal to the terms sum of Six Million United States Dollars (U.S.$6,000,000) plus the amount of any Seller Closing Adjustment (as defined in Section 2.7(c) below), LESS (1) amounts constituting Closing Seller Liabilities (as defined in Section 2.6(a)(ii) below), (2) amounts owed to Buyer under the Loan Agreement and conditions set off by Buyer, (3) amounts owed to Buyer under the Management Services Agreement and set off by Buyer, and (4) the amount of any Buyer Closing Adjustment (as defined in Section 2.7(c) below) (the "CLOSING CASH CONSIDERATION"); (ii) make payment on behalf of Seller of the Closing Seller Liabilities as provided in Section 2.6(a)(ii) below; (iii) assume the Assumed Liabilities (and no other Liabilities) of Seller; and (iv) agree, as provided in Article 12 of this Agreement, to pay Seller in cash, at the time provided in Article 12 of this Agreement, the purchase price for the Interests and the Purchased Assets Deferred Amount (other than the Specified OUS Assetsas defined below) (such amount, the “Purchase Price”) is payable as follows:
(i) Buyer shall pay to Parent at the Closing (the “Closing Payment”), for the benefit of Parent and Sellers, cash in an amount equal to $708,500,000, plus the Estimated Cash, minus the Estimated Indebtedness, plus amount of Damages that Buyer is entitled to recover from the Estimated Working Capital Excess, if applicable, or minus the Estimated Working Capital Deficit, if applicable, plus the Estimated Net Intercompany Receivable, if applicable, or minus the Estimated Net Intercompany Payable, if applicable, plus any applicable VAT in relation Deferred Amount pursuant to the Purchase Price as provided in Section 7.08, minus the Delayed Payment Claims (as defined in Section 2.03(a)(ii12.4) in accordance with Article 12 of this Agreement (the "PURCHASE PRICE"));
. As used herein, the "DEFERRED AMOUNT" means the sum of One Million United States Dollars (iiU.S.$1,000,000) At in cash. The Parties acknowledge and agree that Buyer shall be the Delayed Closingsole owner of the Deferred Amount and Seller has no right or interest therein until all or any portion of the Deferred Amount is required to be paid and released to Seller under the terms of Article 12 of this Agreement, and that subject to the provisions of Article 12, Buyer shall pay, or shall cause be entitled to be paid, to retain the applicable Deferred Amount as a non-exclusive remedy in respect of Seller, the applicable payment set forth opposite such Seller’s name on Section 2.03(a)(ii)Section 2.02(c)(iii) of the Seller Disclosure Schedule (the “Delayed Payment”); and
(iii) Buyer shall assume the Initial Assumed Liabilities at the Closing (or any Delayed Closing as provided in Section 2.06(b)) and shall assume the applicable Later Assumed Liabilities at the applicable Later Closing (or, with respect to any Liabilities assumed at a Delayed Transfer Date pursuant to 's indemnification obligations under this Article VI or Appendix VI, such Transfer Date).
(b) The Closing Payment shall be paid at the Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than three (3) Business Days prior to the Closing Date. The Delayed Payment shall be paid at the Delayed Closing by wire transfer of immediately available funds to a bank account designated to Buyer in writing by Parent no later than one (1) Business Days prior to the Delayed Closing Date.
(c) As soon as practicable, and in any event not later than one hundred eighty (180) days after the Closing Date, Parent shall provide for Buyer’s review and comments a proposed allocation of the Purchase Price, as adjusted for all relevant tax purposes to take into account the Assumed Liabilities, by country or by Transferred Subsidiary as applicable, and among the Purchased Assets, the Assumed Liabilities and the assets of the Transferred Subsidiaries by asset category 12 in accordance with the principles of Section 1060 of the Code and other applicable Law, except that if a section 338(h)(10) election is not made, no allocation shall be made to the assets of a Transferred Subsidiary that is a domestic corporation for purposes of the Code (the “Proposed Allocation”). Buyer shall have the right to consent or object to the Proposed Allocation during the thirty (30) day period immediately following delivery of the Proposed Allocation. If Buyer delivers a notice of objection to Parent during that thirty (30) day period, Parent and Buyer shall negotiate in good faith to resolve their differences with respect to the Proposed Allocation. If Buyer makes no objection during that thirty (30) day period or Parent and Buyer agree on an allocation within the thirty (30) day period following Buyer’s delivery of such a notice of objection, the Proposed Allocation or the agreed allocation, as applicable, shall be final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Agreed-Upon Allocation”). If Parent and Buyer are unable to reach agreement on the Proposed Allocation within thirty (30) days following the delivery to Parent of Buyer’s notice of objection to the Proposed Allocation, the allocation shall be determined by an internationally-recognized independent accounting firm mutually selected by Buyer and Parent (the “Allocation Accounting Firm”) using customary valuation methodologies; provided, however, that the Allocation Accounting Firm shall make its determination within thirty (30) days following the date on which the Allocation Accounting Firm is selected pursuant to this Section 2.03(c). The determination made by the Allocation Accounting Firm of the allocation shall be, absent manifest error, final and binding on Parent, on behalf of itself and Sellers, and Buyer (the “Final Allocation”). All negotiations pursuant to this this Section 2.03(c) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations and submissions to the Allocation Accounting Firm, and the dispute resolution proceedings under this Section 2.03(c), shall be treated as confidential information. The fees and expenses of the Allocation Accounting Firm for its services rendered pursuant to this Section 2.03(c) shall be borne by Parent, on the one hand, and Buyer, on the other, in inverse proportion as each shall prevail on the dollar amounts of such disputed items so submitted to the Allocation Accounting Firm as provided in this Section 2.03(c). The Agreed-Upon Allocation or Final Allocation, as applicable, may be revised by mutual agreement between the Buyer and Parent, from time to time, prior to and following the Closing so as to reflect any matters that need updating (including adjustments to the Purchase Price under Article X, if any)terms thereof.
(d) Each of Parent, Buyer and each of their respective Affiliates shall prepare and file, and cause its Affiliates to prepare and file, its Tax Returns, including Form 8023 and Form 8594 if applicable, on a basis consistent with the Agreed-Upon Allocation or Final Allocation, as applicable. None of Parent, Buyer or their respective Affiliates shall take any position inconsistent with the Agreed-Upon Allocation or Final Allocation, as applicable, in any Tax Return, in any refund claim for any Tax, in any litigation or administrative proceeding relating to any Tax, or otherwise unless required by final determination by an applicable Taxation
Appears in 1 contract
Sources: Asset Purchase Agreement (Primix)