Common use of Allocation of the Aggregate Purchase Price Clause in Contracts

Allocation of the Aggregate Purchase Price. Pfizer, on behalf of itself and the Seller Corporations, and Purchaser (i) have agreed to the allocation of the Aggregate Purchase Price among the Conveyed Subsidiaries and the Asset Selling Corporations as 46 set forth in Schedule 2.9 (the "Section 2.9(i) Allocation") and (ii) shall agree prior to Closing on (A) the portion of the Aggregate Purchase Price that shall be allocated to Howmedica Leibinger Inc. (the "Section 338(h)(10) Aggregate Purchase Price"), (B) an allocation of the Section 338(h)(10) Aggregate Purchase Price among the assets of Howmedica Leibinger Inc. (the "Section 2.9(ii)(B) Allocation") and (C) the portion of the Aggregate Purchase Price that shall be allocated to, and the allocation of such portion among, the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C) Allocation" and, together with the Section 2.9(i) Allocation and the Section 2.9(ii)(B) Allocation, the "Allocation"). Each of Seller Corporations on the one hand and Purchaser on the other shall (i) be bound by the Allocation for purposes of determining any Taxes, (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Allocation, and (iii) take no position, and cause its Affiliates to take no position, inconsistent with the Allocation on any applicable Tax Return or in any proceeding before any taxing authority or otherwise. In the event that the Allocation is disputed by any taxing authority, the party receiving notice of the dispute shall promptly notify 47 the other party hereto concerning the existence of the dispute and the proposed resolution of the dispute. Each of the Seller Corporations and Purchaser acknowledge that the Section 2.9(i) Allocation was done at arm's length based upon a good faith estimate of fair market values. Pfizer and Purchaser agree that Purchaser shall choose an independent appraisal firm to perform an appraisal to support the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a copy of the appraiser's report at least 15 days prior to Closing and, provided that Pfizer consents to the report (which consent shall not be unreasonably withheld), the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report. If Pfizer does not consent to the appraiser's report, Pfizer and Purchaser shall mutually agree prior to Closing on any changes to be made to the report and the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report as so changed. Notwithstanding the foregoing, the parties agree that, for purposes of the Section 2.9(ii)(C) Allocation, the amounts to be allocated for goodwill (defined for these purposes as 48 the value of trade or business attributable to the expectancy of continued customer patronage) of Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co. KG shall not be less than $40,000,000, $35,000,000 and $20,000,000, respectively. Working capital adjustments pursuant to Section 2.8 and other post-Closing adjustments, if any, to the Aggregate Purchase Price shall be allocated to the Conveyed Subsidiary (and its Subsidiaries) or to the Asset Selling Corporation to which the adjustment relates, and shall be further allocated (if relevant for purposes of any applicable Law) to the assets to which the adjustment relates. The Aggregate Purchase Price allocation to such Conveyed Subsidiary (or Subsidiary) or Asset Selling Corporation shall be correspondingly increased or decreased. If after all other adjustments to the Allocation are made, the Allocation with respect to any Asset Selling Corporation, when expressed in the relevant local currency at the rate of exchange used to determine Final Working Capital, is less than the local currency net book value, determined in accordance with GAAP, of the Conveyed Assets of such Asset Selling Corporation as of the Closing Date, then the Allocation with respect to such Asset Selling Corporation shall be adjusted so that it is equal to 49 such local currency net book value converted at the rate of exchange used to determine Final Working Capital and a corresponding adjustment to the Allocation with respect to Howmedica International Inc. will be made.

Allocation of the Aggregate Purchase Price. Pfizer, on behalf of itself and the Seller Corporations, and Purchaser (i) have agreed to the allocation as of the Closing Date of the Aggregate Purchase Price among the Conveyed Subsidiaries and the Asset Selling Corporations as 46 set forth in Schedule 2.9 (the "“Section 2.9(i) Allocation"”) and (ii) shall agree prior to the Closing on (A) the portion allocation as of the Aggregate Closing Date among the Purchased Assets sold by each Asset Selling Corporation of the Asset Purchase Price that shall be allocated allocable to Howmedica Leibinger Inc. such Asset Selling Corporation as set forth in Schedule 2.9 (the "“Section 338(h)(10) Aggregate Purchase Price"), (B) an allocation of the Section 338(h)(10) Aggregate Purchase Price among the assets of Howmedica Leibinger Inc. (the "Section 2.9(ii)(B2.9(ii) Allocation") and (C) the portion of the Aggregate Purchase Price that shall be allocated to, and the allocation of such portion among, the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C) Allocation" ” and, together with the Section 2.9(i) Allocation and the Section 2.9(ii)(B) Allocation, the "“Allocation"”). Each of the Seller Corporations on the one hand and Purchaser on the other shall (i) be bound by the Allocation for purposes of determining any Taxes, ; (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Allocation, ; and (iii) take no position, and cause its Affiliates to take no Back to Contents position, inconsistent with the Allocation on any applicable Tax Return or in any proceeding before any taxing authority or otherwise. In the event that the Allocation is disputed by any taxing authorityauthority or Governmental Authority, the party receiving notice of the dispute shall promptly notify 47 the other party hereto concerning the existence of the dispute hereto, and both Pfizer and Purchaser agree to use their best efforts to defend such Allocation in any audit or similar proceeding, and the proposed resolution of the disputematter shall be handled as a Tax Claim described in Section 7.4(i)(B). Each of the Seller Corporations and Purchaser acknowledge that the Section 2.9(i) Allocation was done made at arm's ’s length based upon a good faith estimate determination of fair market values. Pfizer and Purchaser agree that Purchaser shall choose an independent appraisal firm to perform an appraisal to support the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a copy of the appraiserPurchaser's report proposed Section 2.9(ii) Allocation at least 15 days 25 Business Days prior to Closing and, provided that Pfizer consents to the report Purchaser's proposed Section 2.9(ii) Allocation (which consent shall not be unreasonably withheld), the Section 2.9(ii)(B2.9(ii) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the reportsuch allocation. If Pfizer does not consent to the appraiserPurchaser's reportproposed Section 2.9(ii) Allocation, Pfizer and Purchaser shall mutually agree use their best efforts to resolve all differences within 15 Business Days prior to Closing Closing. If Pfizer and Purchaser are unable to resolve all differences within 15 Business Days prior to Closing, then any remaining disputed matters shall be submitted to American Appraisal (the "Allocation Arbiter") for the final and conclusive determination. The Allocation Arbiter shall determine (based solely on any changes to be made presentations by Pfizer and Purchaser and not by independent review) only those matters in dispute and shall render a written report within 3 days prior to the report Closing as to the disputed matters and the resulting Section 2.9(ii) Allocation, and the Section 2.9(ii)(B2.9(ii) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified so agreed. Pfizer and Purchaser shall each pay one-half of all the costs incurred in connection with the report as so changed. Notwithstanding the foregoing, the parties agree that, for purposes engagement of the Section 2.9(ii)(C) Allocation, the amounts to be allocated for goodwill (defined for these purposes as 48 the value of trade or business attributable to the expectancy of continued customer patronage) of Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co. KG shall not be less than $40,000,000, $35,000,000 and $20,000,000, respectivelyAllocation Arbiter. Working capital adjustments pursuant to Section 2.8 and other post-Closing adjustments, if any, to the Aggregate Purchase Price shall be allocated to the Conveyed Subsidiary (and its Subsidiaries) Company or to the Asset Selling Corporation to which the adjustment relates, and shall be further allocated (if relevant for purposes of any applicable Law) to the assets to which the adjustment relates. The Aggregate Purchase Price allocation to such Conveyed Subsidiary (or Subsidiary) Company or Asset Selling Corporation shall be correspondingly increased or decreased. If Pfizer and Purchaser acknowledge that, in accordance with GAAP, the fair market value of the Purchased Assets is not less than the net book value of the Purchased Assets and that, in accordance therewith, if after all other adjustments to the Allocation are made, made the Allocation with respect to any Asset Selling Corporation, Corporation when expressed in the relevant local currency at the rate of exchange used to determine Final Working Capital, is Capital would otherwise be less than the local currency net book value, value determined in accordance with GAAP, GAAP of the Conveyed Purchased Assets of such Asset Selling Corporation as of the Closing Date, then the Allocation with respect to such Asset Selling Corporation shall be adjusted so that it is equal to 49 such local currency net book value converted at the rate of exchange used to determine Final Working Capital and a corresponding adjustment shall be made to the Allocation pro rata with respect to Howmedica International Inc. will be madeXxxxxx-Xxxxxxx Company and Grupo Xxxxxx Xxxxxxx Mexico, S. de X.X. De C.V. based on their relative Aggregate Purchase Price allocation.

Allocation of the Aggregate Purchase Price. Pfizer, on behalf of itself and the Seller Corporations, and Purchaser (i) The Parties have agreed to the allocation of the Aggregate Purchase Price among the Conveyed Subsidiaries Interests, the Purchased IP and among the Asset Selling Corporations other assets of the Acquired Companies as 46 set forth in Section 2.6 of the Disclosure Schedule 2.9 (the "Section 2.9(i) “Purchase Price Allocation") and (ii) shall agree prior to Closing on (A) ”), provided, however, that in the portion event of any material changes in the balance sheets of the Aggregate Purchase Price that shall be allocated to Howmedica Leibinger Inc. (Acquired Companies between signing and Closing, the "Section 338(h)(10) Aggregate Purchase Price"), (B) an Parties will adjust the allocation of the Section 338(h)(10) Aggregate Purchase Price among to the assets Interests to the extent necessary to account for such changes (but in the event of Howmedica Leibinger Inc. (any such material change, in no event will the "Section 2.9(ii)(B) Allocation") and (C) the portion of the Aggregate Purchase Price that shall allocated to particular Interests be allocated to, and less than the allocation net book value of such portion among, Interests on the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C) Allocation" and, together with the Section 2.9(i) Allocation and the Section 2.9(ii)(B) Allocation, the "Allocation"Closing Date). Each of Seller Corporations on the one hand and Purchaser on the other shall Party will: (ia) be bound by the Purchase Price Allocation for purposes of determining any Taxes, ; (iib) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Purchase Price Allocation, ; and (iiic) take no position, and cause its Affiliates to take no position, inconsistent with the Purchase Price Allocation on any applicable Tax Return or in any proceeding Action before any taxing authority Tax Authority or otherwise. In the event that the Purchase Price Allocation is disputed by any taxing authorityTax Authority, the party Party receiving notice of the dispute shall promptly notify 47 the other party hereto concerning the existence of the dispute Parties, and the proposed resolution of the dispute. Each of the Seller Corporations and Purchaser acknowledge that the Section 2.9(i) Allocation was done at arm's length based upon a good faith estimate of fair market values. Pfizer and Purchaser agree that Purchaser shall choose an independent appraisal firm each Party agrees to perform an appraisal use its reasonable best efforts to support the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of defend such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a copy of the appraiser's report at least 15 days prior to Closing and, provided that Pfizer consents to the report (which consent shall not be unreasonably withheld), the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report. If Pfizer does not consent to the appraiser's report, Pfizer and Purchaser shall mutually agree prior to Closing on any changes to be made to the report and the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report as so changed. Notwithstanding the foregoing, the parties agree that, for purposes of the Section 2.9(ii)(C) Allocation, the amounts to be allocated for goodwill (defined for these purposes as 48 the value of trade or business attributable to the expectancy of continued customer patronage) of Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co. KG shall not be less than $40,000,000, $35,000,000 and $20,000,000, respectively. Working capital adjustments pursuant to Section 2.8 and other post-Closing adjustments, if any, to the Aggregate Purchase Price shall be allocated to the Conveyed Subsidiary (and its Subsidiaries) Allocation in any audit or to the Asset Selling Corporation to which the adjustment relatessimilar Action. CONFIDENTIAL TREATMENT REQUESTED BY XXXXXXXX AMERICAN INC. – CONFIDENTIAL PORTIONS OF THIS DOCUMENT, and shall be further allocated (if relevant for purposes of any applicable Law) to the assets to which the adjustment relates. The Aggregate Purchase Price allocation to such Conveyed Subsidiary (or Subsidiary) or Asset Selling Corporation shall be correspondingly increased or decreased. If after all other adjustments to the Allocation are madeMARKED BY *****, the Allocation with respect to any Asset Selling CorporationHAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, when expressed in the relevant local currency at the rate of exchange used to determine Final Working Capital, is less than the local currency net book value, determined in accordance with GAAP, of the Conveyed Assets of such Asset Selling Corporation as of the Closing Date, then the Allocation with respect to such Asset Selling Corporation shall be adjusted so that it is equal to 49 such local currency net book value converted at the rate of exchange used to determine Final Working Capital and a corresponding adjustment to the Allocation with respect to Howmedica International Inc. will be madeAS AMENDED.

Allocation of the Aggregate Purchase Price. Pfizer, on behalf of itself and the Seller Corporations, and Purchaser (i) have agreed to the allocation of the Aggregate Purchase Price among the Conveyed Subsidiaries and the Asset Selling Corporations as 46 set forth in Schedule 2.9 (the "Section 2.9(i) Allocation") and (ii) shall agree prior to Closing on (A) the portion of the Aggregate Purchase Price that shall be allocated to Howmedica Leibinger Inc. (the "Section 338(h)(10) Aggregate Purchase Price"), (B) an allocation of the Section 338(h)(10) Aggregate Purchase Price among the assets of Howmedica Leibinger Inc. (the "Section 2.9(ii)(B) Allocation") and (C) the portion of the Aggregate Purchase Price that shall be allocated to, and the allocation of such portion among, the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C) Allocation" and, together with the Section 2.9(i) Allocation and the Section 2.9(ii)(B) Allocation, the "Allocation"). Each of Seller Corporations on the one hand and Purchaser on the other shall (i) be bound by the Allocation for purposes of determining any Taxes, (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Allocation, and (iii) take no position, and cause its Affiliates to take no position, inconsistent with the Allocation on any applicable Tax Return or in any proceeding before any taxing authority or otherwise. In the event that the Allocation is disputed by any taxing authority, the party receiving notice of the dispute shall promptly notify 47 the other party hereto concerning the existence of the dispute and the proposed resolution of the dispute. Each of the Seller Corporations and Purchaser acknowledge that the Section 2.9(i) Allocation was done at arm's length based upon a good faith estimate of fair market values. Pfizer and Purchaser agree that Purchaser shall choose an independent appraisal firm to perform an appraisal to support the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a copy of the appraiser's report at least 15 days prior to Closing and, provided that Pfizer consents to the report (which consent shall not be unreasonably withheld), the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report. If Pfizer does not consent to the appraiser's report, Pfizer and Purchaser shall mutually agree prior to Closing on any changes to be made to the report and the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report as so changed. Notwithstanding the foregoing, the parties agree that, for purposes of the Section 2.9(ii)(C) Allocation, the amounts to be allocated for goodwill (defined for these purposes as 48 the value of trade or business attributable to the expectancy of continued customer patronage) of Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co. KG shall not be less than $40,000,000, $35,000,000 and $20,000,000, respectively. Working capital adjustments pursuant to Section 2.8 and other post-Closing adjustments, if any, to the Aggregate Purchase Price shall be allocated to the Conveyed Subsidiary (and its Subsidiaries) or to the Asset Selling Corporation to which the adjustment relates, and shall be further allocated (if relevant for purposes of any applicable Law) to the assets to which the adjustment relates. The Aggregate Purchase Price allocation to such Conveyed Subsidiary (or Subsidiary) or Asset Selling Corporation shall be correspondingly increased or decreased. If after all other adjustments to the Allocation are made, the Allocation with respect to any Asset Selling Corporation, when expressed in the relevant local currency at the rate of exchange used to determine Final Working Capital, is less than the local currency net book value, determined in accordance with GAAP, of the Conveyed Assets of such Asset Selling Corporation as of the Closing Date, then the Allocation with respect to such Asset Selling Corporation shall be adjusted so that it is equal to 49 such local currency net book value converted at the rate of exchange used to determine Final Working Capital and a corresponding adjustment to the Allocation with respect to Howmedica International Inc. will be made.

Allocation of the Aggregate Purchase Price. Pfizer, on behalf ------------------------------------------- of itself and the Seller Corporations, and Purchaser (i) have agreed to the allocation of the Aggregate Purchase Price among the Conveyed Subsidiaries and the Asset Selling Corporations as 46 set forth in Schedule 2.9 (the "Section 2.9(i) ------------ -------------- Allocation") and (ii) shall agree prior to Closing as set forth below on (A) the portion allocation ---------- among the Purchased Assets sold by each Asset Selling Corporation of the Aggregate Asset Purchase Price that shall be allocated allocable to Howmedica Leibinger Inc. such Asset Selling Corporation as set forth in Schedule 2.9 (the "Section 338(h)(10) Aggregate Purchase Price"), (B) an allocation of the Section 338(h)(10) Aggregate Purchase Price among the assets of Howmedica Leibinger Inc. (the "Section 2.9(ii)(B) Allocation") and (C) the portion of the Aggregate Purchase Price that shall be allocated to, and the allocation of such portion among, the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C2.9(ii) Allocation" and, together with the Section -------- -------------------------- 2.9(i) Allocation and the Section 2.9(ii)(B) Allocation, the "Allocation"). Each of the Seller Corporations on the ---------- one hand and Purchaser on the other shall (i) be bound by the Allocation for purposes of determining any Taxes, ; (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Allocation, ; and (iii) take no position, and cause its Affiliates to take no position, inconsistent with the Allocation on any applicable Tax Return or in any proceeding before any taxing authority or otherwise. In the event that the Allocation is disputed by any taxing authority, the party receiving notice of the dispute shall promptly notify 47 the other party hereto concerning the existence of the dispute hereto, and both Pfizer and Purchaser agree to use their best efforts to defend such Allocation in any audit or similar proceeding, and the proposed resolution of the disputematter shall be handled as a Tax Claim described in Section 7.4(i)(B). Each of the Seller Corporations and Purchaser acknowledge that the Section 2.9(i) Allocation was done at arm's length based upon a good faith estimate of fair market values. Pfizer and Purchaser agree that Purchaser shall choose an independent appraisal firm to perform an appraisal to support the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a copy of the appraiser's report at least 15 days prior to Closing and, provided that Pfizer consents to the report (which consent shall not be unreasonably withheld2.9(ii), the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report. If Pfizer does not consent to the appraiser's report, Pfizer and Purchaser shall mutually agree prior to Closing on any changes to be made to the report and the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made as specified in the report as so changed. Notwithstanding the foregoing, the parties agree that, for purposes of the Section 2.9(ii)(C) Allocation, the amounts to be allocated for goodwill (defined for these purposes as 48 the value of trade or business attributable to the expectancy of continued customer patronage) of Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co. KG shall not be less than $40,000,000, $35,000,000 and $20,000,000, respectively. Working capital adjustments pursuant to Section 2.8 and other post-Closing adjustments, if any, to the Aggregate Purchase Price shall be allocated to the Conveyed Subsidiary (and its Subsidiaries) or to the Asset Selling Corporation to which the adjustment relates, and shall be further allocated (if relevant for purposes of any applicable Law) to the assets to which the adjustment relates. The Aggregate Purchase Price allocation to such Conveyed Subsidiary (or Subsidiary) or Asset Selling Corporation shall be correspondingly increased or decreased. If after all other adjustments to the Allocation are made, the Allocation with respect to any Asset Selling Corporation, when expressed in the relevant local currency at the rate of exchange used to determine Final Working Capital, is less than the local currency net book value, determined in accordance with GAAP, of the Conveyed Assets of such Asset Selling Corporation as of the Closing Date, then the Allocation with respect to such Asset Selling Corporation shall be adjusted so that it is equal to 49 such local currency net book value converted at the rate of exchange used to determine Final Working Capital and a corresponding adjustment to the Allocation with respect to Howmedica International Inc. will be made.