Common use of Purchase Price; Payment of Purchase Price Clause in Contracts

Purchase Price; Payment of Purchase Price. (a) The aggregate consideration for the Purchased Assets and Seller’s Business related thereto shall be the assumption of the Assumed Liabilities and Sixty Million Dollars ($60,000,000.00), less the Vacation Amount and the Materials Inventory Amount (collectively, the “Purchase Price”), subject to adjustment as set forth in this Agreement. (b) At Closing, the applicable Purchaser shall pay to (A) the Parent Seller, the Parent Seller’s portion of the Purchase Price (as mutually agreed to by the Purchaser and Seller at the Closing) less (i) any Withholding Taxes deducted pursuant to Section 2.5(c) and (ii) the Indemnification Escrow Amount, and (B) the Subsidiary Seller, the Subsidiary Seller's portion of the Purchase Price (as mutually agreed to by the Purchaser and Seller at the Closing) less any Withholding Taxes deducted pursuant to Section 2.5(c), in each case via wire transfer of immediately available funds to an account of Parent Seller (or the Subsidiary Seller) which shall be specified by Parent Seller to Parent Purchaser no less than three (3) Business Days prior to the Closing. At the Closing, Parent Purchaser shall transfer the Indemnification Escrow Amount via wire transfer of immediately available funds to an account specified by the Escrow Agent. (c) Purchaser may deduct from the Purchase Price any Withholding Taxes required to be withheld and paid by Purchaser for the account of Seller with respect to the consideration; provided, however, (a) before making any such deduction or withholding, Purchaser shall give Seller notice of the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a commercially reasonable period of time before such deduction or withholding is required, in order for Seller to obtain reduction of or relief from such deduction or withholding); (b) Purchaser shall cooperate with Seller to the extent reasonable in efforts to obtain reduction of or relief from such deduction or withholding; and (c) Purchaser shall timely remit to the appropriate Governmental Authority any and all amounts so deducted or withheld and timely file all Tax Returns and provide to Seller such information statements and other documents required to be filed or provided under applicable Tax Law. Purchaser shall provide Seller with evidence of payment to the appropriate taxing authorities of the withheld Withholding Taxes. If for any reason the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, such required Withholding Taxes not withheld shall remain Retained Liabilities despite such non-withholding. (d) Purchaser shall execute and deliver an Assignment and Assumption Agreement, a form of which is attached hereto as Exhibit F (the “Assignment and Assumption Agreement”), evidencing the assignment by Seller of certain of the Purchased Assets and the assumption by Purchaser of the Assumed Liabilities.

Purchase Price; Payment of Purchase Price. (a) The aggregate consideration for the Purchased Assets and SellerTarget’s Business businesses related thereto shall be the assumption of the Assumed Liabilities and Sixty Million Dollars ($60,000,000.00), less the Vacation Amount and the Materials Inventory Amount [****] (collectively, the “Purchase Price”). For avoidance of doubt, subject the Purchase Price will not be reduced by the amount of Transfer Taxes payable by Parent or any of its Affiliates pursuant to adjustment as set forth in this AgreementSection 6.11(c). (b) At Closing, the applicable Purchaser Acquiror shall pay to (Ai) Target Holdings, Target Holdings’ portion of the Parent SellerPurchase Price (as set forth in the Purchase Price Target Allocation); (ii) Target France Sub, the Parent SellerTarget France Sub’s portion of the Purchase Price (as mutually agreed to by set forth in the Purchaser and Seller at the ClosingPurchase Price Target Allocation) less (i) any Withholding Taxes deducted pursuant to Section 2.5(c) and (ii) the Indemnification Escrow Amount; (iii) Target USA Sub, and (B) the Subsidiary Seller, the Subsidiary Seller's Target USA Sub’s portion of the Purchase Price (as mutually agreed to by set forth in the Purchaser and Seller at the Closing) less any Withholding Taxes deducted pursuant to Section 2.5(cPurchase Price Target Allocation ), in each case case, via wire transfer of immediately available funds to an account of Parent Seller (or the Subsidiary Seller) accounts which shall be specified by Parent Seller Target Holdings to Parent Purchaser no less than three (3) Business Days Acquiror prior to the Closing. At If Acquiror is required to make a withholding or deduction for or on account of Taxes on any portion of the ClosingPurchase Price received or receivable hereunder by Target, Parent Purchaser shall transfer the Indemnification Escrow Amount via wire transfer of immediately available funds amount payable under this Agreement will be increased to the amount which, after making the Tax deduction or withholding, will leave an account specified by amount equal to the Escrow Agentpayment which would have been due if no Tax deduction or withholding had been required. (c) Purchaser may deduct from the Purchase Price any Withholding Taxes required to be withheld and paid by Purchaser for the account of Seller with respect to the consideration; provided, however, (a) before making any such deduction or withholding, Purchaser shall give Seller notice of the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a commercially reasonable period of time before such deduction or withholding is required, in order for Seller to obtain reduction of or relief from such deduction or withholding); (b) Purchaser shall cooperate with Seller to the extent reasonable in efforts to obtain reduction of or relief from such deduction or withholding; and (c) Purchaser shall timely remit to the appropriate Governmental Authority any and all amounts so deducted or withheld and timely file all Tax Returns and provide to Seller such information statements and other documents required to be filed or provided under applicable Tax Law. Purchaser shall provide Seller with evidence of payment to the appropriate taxing authorities of the withheld Withholding Taxes. If for any reason the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, such required Withholding Taxes not withheld shall remain Retained Liabilities despite such non-withholding. (d) Purchaser Acquiror shall execute and deliver an Assignment and Assumption Agreement, a form of which is attached hereto as Exhibit F D (the “Assignment and Assumption Agreement”), evidencing the assignment by Seller Target of certain of the Purchased Assets and the assumption by Purchaser Acquiror of the Assumed Liabilities.

Purchase Price; Payment of Purchase Price. ADVANCE ---------------------------------------------------------------- PAYMENT INDEMNITY ----------------- (a) The aggregate consideration for Upon the Purchased Assets terms and Seller’s Business related thereto subject to the conditions of this Agreement, Purchaser shall deliver or cause to be delivered to Seller at the Closing, in full payment of the aforesaid sale, transfer and assignment of the Transferred Assets, immediately available funds in the total amount of Euros [**] (the "Purchase Price"). Payment of the purchase price shall be made by a bank check ("cheque de banque") drawn on a French bank reasonably acceptable by Seller, to be delivered to Seller on the assumption Closing. The Purchase Price shall not be subject to any adjustment or revision except as provided hereafter and represents the entire purchase price of the Assumed Liabilities and Sixty Million Dollars ($60,000,000.00), less the Vacation Amount and the Materials Inventory Amount (collectively, the “Purchase Price”), subject to adjustment as set forth in this AgreementTransferred Assets. (b) At Closing, In consideration for the applicable fact that the Purchaser shall pay to (A) the Parent Seller, the Parent Seller’s portion of the Purchase Price on the Closing Date but that the transfer of the Transferred Assets shall only occur on the Completion Date, Seller shall pay to Purchaser, as an advance payment indemnity, an amount equal to the net margin of Seller 's Affiliates or any order of Licensed Product shipped to third party customers in the Territory (other than Affiliates of Seller) from, and including, the Closing Date to the Completion Date (the "Net Margin"). For the purpose of this clause, Net Margin shall be equal to [**] of Net Sales in the Territory. Net Sales shall have the same meaning as mutually agreed in the Transitory Distribution Agreement. Net Sales from the Closing Date to by December 31, 2001 shall be deemed to be equal to 18/31st of the Net Sales during the entire month of December. Seller shall notify the amounts of Net Margin, together with the amount and localization of the Net Sales on which such Net Margin was made, within 20 Business Days from the Completion Date. Purchaser (or a designated representative of Purchaser) shall have the right to review all work papers and procedures used to calculate the Net Sales and shall have the right to perform any other reasonable procedures necessary to verify the accuracy thereof. Unless, within fifteen (15) Business Days after notification to Purchaser of the amount of the Net Margin, Purchaser notifies Seller in writing that it objects to the calculation of the Net Margin and specifies the basis for such objection, such calculation of Net Margin shall become final and binding upon the Parties for the purpose of this Article 3. If Purchaser objects and if Purchaser and Seller are unable to resolve all of Purchaser's objections within fifteen (15) Business Days after such notification has been given, all remaining matters in dispute shall be submitted to the office of KPMG-Peat Marwick located in the Paris Region, or if such office of KPMG-Peat Marwick is not available or refuses to act, another accounting firm to be chosen among the offices of internationally reputed accounting firms ("big five") in the Paris Region other than the auditors of Seller or Purchaser (KPMG - Peat Marwick or such other firm, as the case may be, are referred to herein as the "Accounting Firm"). In the event Seller and Purchaser are unable to agree upon the selection of the Accounting Firm within five (5) Business Days after expiration of the herein above referred fifteen (15) Business Day period, the Accounting Firm shall be appointed by the International Center for Expertise of the International Chamber of Commerce, Paris, France at the Closing) less (i) any Withholding Taxes deducted pursuant to Section 2.5(c) and (ii) the Indemnification Escrow Amount, and (B) the Subsidiary Seller, the Subsidiary Seller's portion request of the Purchase Price (most diligent party. The International Center for Expertise shall not, however, administer the dispute resolution procedure. The request to the International Center for Expertise shall include a copy of the present clause and shall stipulate that the Accounting Firm shall be a French firm affiliated to one of the "big five" networks and based in the Paris Region. The Accounting Firm shall, acting as mutually agreed experts and not as arbitrators, make a final determination as to by the all remaining matters in dispute with respect to Net Margin which determination shall be conclusive and binding on Purchaser and Seller. Purchaser and Seller at the Closing) less any Withholding Taxes deducted pursuant agree to Section 2.5(c), in cooperate with each case via wire transfer of immediately available funds to an account of Parent Seller (or the Subsidiary Seller) which shall be specified by Parent Seller to Parent Purchaser no less than three (3) Business Days prior to the Closing. At the Closing, Parent Purchaser shall transfer the Indemnification Escrow Amount via wire transfer of immediately available funds to an account specified by the Escrow Agent. (c) Purchaser may deduct from the Purchase Price any Withholding Taxes required to be withheld and paid by Purchaser for the account of Seller with respect to the consideration; provided, however, (a) before making any such deduction or withholding, Purchaser shall give Seller notice of the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a commercially reasonable period of time before such deduction or withholding is required, other in order for Seller to obtain reduction of or relief from such deduction or withholding); (b) Purchaser shall cooperate with Seller to the extent reasonable in efforts to obtain reduction of or relief from such deduction or withholding; and (c) Purchaser shall timely remit to the appropriate Governmental Authority resolve any and all amounts so deducted or withheld and timely file all Tax Returns and provide to Seller such information statements and other documents required to be filed or provided under applicable Tax Lawmatters in dispute as soon as possible. Purchaser shall provide Seller with evidence of payment and Seller's accountants full access to the appropriate taxing authorities of Transferred Books and Records, to any other information, and to its employees, and shall cooperate with Seller, to the withheld Withholding Taxes. If extent necessary for any reason Seller to calculate the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, such required Withholding Taxes not withheld shall remain Retained Liabilities despite such non-withholdingNet Margin. (d) Purchaser shall execute and deliver an Assignment and Assumption Agreement, a form of which is attached hereto as Exhibit F (the “Assignment and Assumption Agreement”), evidencing the assignment by Seller of certain of the Purchased Assets and the assumption by Purchaser of the Assumed Liabilities.

Purchase Price; Payment of Purchase Price. (a) The aggregate consideration for the Purchased Assets and Seller’s Business related thereto shall be as follows (collectively, the "Purchase Price"): (i) Forty Four Million Dollars ($44,000,000.00); (ii) the Inventory Purchase Price; (iii) a Contingent Purchase Price of One Million Dollars ($1,000,000.00), subject to (A) Section 2.5(d) and (B) any earlier payment thereof as set forth in Schedule 8.1; and (iv) the assumption of the Assumed Liabilities and Sixty Million Dollars ($60,000,000.00), less the Vacation Amount and the Materials Inventory Amount (collectively, the “Purchase Price”), subject to adjustment as set forth in this AgreementLiabilities. (b) At the Closing, the applicable Purchaser shall pay to $44,000,000.00 referenced in (Aa)(i) above and the Parent Seller, the Parent Seller’s portion of the Inventory Purchase Price (as mutually agreed to by the Purchaser and Seller at the Closing) less (i) any Withholding Taxes deducted pursuant to Section 2.5(c) and (ii) the Indemnification Escrow Amount, and (B) the Subsidiary Seller, the Subsidiary Seller's portion of the Purchase Price (as mutually agreed to by the Purchaser and Seller at the Closing) less any Withholding Taxes deducted pursuant to Section 2.5(c), in each case shall be paid via wire transfer of immediately available funds from Purchaser to an account of Parent Seller (or the Subsidiary Seller) which shall such account to be specified by Parent Seller to Parent Purchaser no less than three (3) Business Days prior to the Closing). At the Closing, Parent Purchaser The Inventory Purchase Price shall transfer the Indemnification Escrow Amount via wire transfer of immediately available funds to an account specified by the Escrow Agentbe determined in accordance with Section 2.5(e) below. (c) Purchaser may deduct from At the Purchase Price any Withholding Taxes required to be withheld Closing the Seller shall assign, and paid by Purchaser for the account of Seller with respect to the consideration; provided, however, (a) before making any such deduction or withholding, Purchaser shall give Seller notice of assume, the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a commercially reasonable period of time before such deduction or withholding is required, in order for Seller to obtain reduction of or relief from such deduction or withholding); (b) Purchaser shall cooperate with Seller to the extent reasonable in efforts to obtain reduction of or relief from such deduction or withholding; and (c) Purchaser shall timely remit to the appropriate Governmental Authority any and all amounts so deducted or withheld and timely file all Tax Returns and provide to Seller such information statements and other documents required to be filed or provided under applicable Tax Law. Purchaser shall provide Seller with evidence of payment to the appropriate taxing authorities of the withheld Withholding Taxes. If for any reason the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, such required Withholding Taxes not withheld shall remain Retained Assumed Liabilities despite such non-withholding. (d) Purchaser shall execute and deliver by executing an Assignment and Assumption Agreement, a in form of which is attached hereto as Exhibit F and substance reasonably acceptable to Seller and Purchaser (the “"Assignment and Assumption Agreement”"). Additionally, at the Closing, Seller shall assign to Purchaser and Purchaser shall assume from Seller all of Seller's interests in and obligations under the Bonds and other Bond Documents arising on and after the Closing Date, by executing an assignment and assumption agreement in substantially the form as approved by the DAHC on January 8, 2004 (the "Bond Assignment and Assumption Agreement"). (d) Except with respect to earlier payments of portions of the Contingent Purchase Price as provided in Schedule 8.1, the Contingent Purchase Price shall be paid via wire transfer upon the satisfactory completion of the Post -Closing Projects, provided that in the event that the Post-Closing Projects have not been completed within 12 months after the Closing Date, the Contingent Purchase Price to be paid to Seller upon completion of the Post -Closing Projects shall be reduced by such amount that is 1/180th of the Contingent Purchase Price or $5,556.00 per day for each day after the first anniversary of the Closing Date that the Post-Closing Projects are not completed in accordance with the terms of this Agreement. (e) Commencing on the second business day prior to the Closing Date (the "Inventory Date"), evidencing representatives of Seller and Purchaser shall jointly conduct a physical inventory, in a manner to be agreed upon by the assignment Parties, of the Inventory on hand on and as of the Inventory Date; and Purchaser shall prepare a list identifying and describing all items included within the Inventory which Purchaser believes are obsolete, damaged or impaired. The parties shall mutually agree upon which items are so obsolete, damaged or impaired and shall remove such items from the Inventory listing (the list as so agreed upon and valued as set forth below, is hereinafter referred to as the "Inventory Date Statement"). The Inventory (including goods which have been ordered and paid for by Seller which are in transit or which have not yet been shipped by the vendor thereof) shall be valued at Seller's "Inventory Cost," which for any item of certain Inventory, shall be Seller's verifiable cost (except for used or rebuilt equipment which shall be valued at fair market value as mutually agreed upon by the parties) determined in accordance with GAAP for such item as of 4:00 p.m. on the second day prior to the Closing Date. The Inventory Cost per unit for each such item shall be given by Seller to Purchaser not later than 5:00 p.m. on the second day prior to the Closing Date, and Seller shall afford Purchaser immediate access to Seller's books and records to permit Purchaser to verify such Inventory Costs. (The aggregate of the values of the various items of Inventory sold by Seller to Purchaser on the Closing Date shall be herein referred to as the "Inventory Purchase Price".) The Inventory Purchase Price shall be stated on the Inventory Date Statement, which shall be agreed upon and executed by Seller and Purchaser at or prior to Closing. If Seller and Purchaser are unable to agree upon either (i) an Inventory Cost for any item of Inventory or (ii) the Inventory Purchase Price by the Closing Date, Seller and Purchaser shall agree upon a reasonable estimate of the Inventory Purchase Price and such amount shall be paid to Seller by Purchaser at the Closing. Immediately following the Closing, Seller and Purchaser shall cooperate in good faith to attempt to agree upon a final Inventory Purchase Price. Upon reaching such agreement, either Seller will pay Purchaser, or Purchaser will pay Seller, as the case may be, the difference between such final Inventory Purchase Price and the Inventory Purchase Price estimated and paid at Closing. If Seller and Purchaser are unable to, within 14 days after the Closing Date, to agree upon such a final Inventory Purchaser Price, the actual final Inventory Purchase Price shall be determined by Ernst & Young LLP (the "Designated Accountant"), whose determination with respect to the matters in question shall be final, conclusive and binding upon each of the parties hereto. Purchaser and Seller shall share the fees and expenses of the Designated Accountant equally. (f) At the Closing, all of the real estate and personal property Taxes and assessments applicable to the Purchased Assets shall be prorated based on the most recently ascertainable real estate and personal Tax xxxx, with Seller being responsible for amounts due for any period prior to Closing. In addition, at the assumption by Closing, the Parties shall prorate each Prepaid Expense based upon the number of days that each Party will receive the benefit of such Prepaid Expense. For purposes of calculating such prorations, Purchaser shall be deemed in title to the Purchased Assets for the entire day of the Assumed LiabilitiesClosing Date.

Purchase Price; Payment of Purchase Price. ADVANCE PAYMENT INDEMNITY ------------------------- (a) The aggregate consideration for Upon the Purchased Assets terms and Seller’s Business related thereto subject to the conditions of this Agreement, Purchaser shall deliver or cause to be delivered to Seller at the Closing, in full payment of the aforesaid sale, transfer and assignment of the Transferred Assets, immediately available funds in the total amount of Euros [**]. Payment of the purchase price shall be made by a bank check ("cheque de banque") drawn on Credit Suisse, or another bank of first rank international reputation, to be delivered to Seller on the assumption Closing. The Purchase Price shall not be subject to any adjustment or revision and represents the entire purchase price of the Assumed Liabilities and Sixty Million Dollars ($60,000,000.00), less the Vacation Amount and the Materials Inventory Amount (collectively, the “Purchase Price”), subject to adjustment as set forth in this AgreementTransferred Assets. (b) At Closing, In consideration for the applicable fact that the Purchaser shall pay to (A) the Parent Seller, the Parent Seller’s portion of the Purchase Price on the Closing Date but that the transfer of the Transferred Assets shall only occur on the Completion Date, Seller shall pay to Purchaser, as an advance payment indemnity, an amount equal to the net margin of Seller 's Affiliates or any order of Licensed Product shipped to third party customers in the Territory (other than Affiliates of Seller) from, and including, the Closing Date to the Completion Date (the "Net Margin"). For the purpose of this clause, Net Margin shall be equal to the following: [**] Net Sales shall have the same meaning as mutually agreed in the Transitory Distribution Agreement(s). Net Sales from the Closing Date to by December 31 shall be deemed to be equal to 18/31st of the Net Sales during the entire month of December. Seller shall notify Purchaser of the amounts of Net Margin, together with the amount and localization of the Net Sales on which such Net Margin was made, within 20 Business Days from the Completion Date. Purchaser (or a designated representative of Purchaser) shall have the right to review all work papers and procedures used to calculate the Net Sales and shall have the right to perform any other reasonable procedures necessary to verify the accuracy thereof. Unless, within fifteen (15) Business Days after notification to Purchaser of the amount of the Net Margin, Purchaser notifies Seller in writing that it objects to the calculation of the Net Margin and specifies the basis for such objection, such calculation of Net Margin shall become final and binding upon the Parties for the purpose of this Article 3. If Purchaser objects and if Purchaser and Seller are unable to resolve all of Purchaser's objections within fifteen (15) Business Days after such notification has been given, all remaining matters in dispute shall be submitted to the office of KPMG-Peat Marwick located in the Paris Region, or if such office of KPMG-Peat Marwick is not available or refuses to act, another accounting firm to be chosen among the offices of internationally reputed accounting firms ("big five") in the Paris Region other than the auditors of Seller or Purchaser (KPMG - Peat Marwick or such other firm, as the case may be, are referred to herein as the "Accounting Firm"). In the event Seller and Purchaser are unable to agree upon the selection of the Accounting Firm within five (5) Business Days after expiration of the herein above referred fifteen (15) Business Day period, the Accounting Firm shall be appointed by the International Center for Expertise of the International Chamber of Commerce, Paris, France at the Closing) less (i) any Withholding Taxes deducted pursuant to Section 2.5(c) and (ii) the Indemnification Escrow Amount, and (B) the Subsidiary Seller, the Subsidiary Seller's portion request of the Purchase Price (most diligent party. The International Center for Expertise shall not, however, administer the dispute resolution procedure. The request to the International Center for Expertise shall include a copy of the present clause and shall stipulate that the Accounting Firm shall be a French firm affiliated to one of the "big five" networks and based in the Paris Region. The Accounting Firm shall, acting as mutually agreed experts and not as arbitrators, make a final determination as to by the all remaining matters in dispute with respect to Net Margin which determination shall be conclusive and binding on Purchaser and Seller. Purchaser and Seller at the Closing) less any Withholding Taxes deducted pursuant agree to Section 2.5(c), in cooperate with each case via wire transfer of immediately available funds to an account of Parent Seller (or the Subsidiary Seller) which shall be specified by Parent Seller to Parent Purchaser no less than three (3) Business Days prior to the Closing. At the Closing, Parent Purchaser shall transfer the Indemnification Escrow Amount via wire transfer of immediately available funds to an account specified by the Escrow Agent. (c) Purchaser may deduct from the Purchase Price any Withholding Taxes required to be withheld and paid by Purchaser for the account of Seller with respect to the consideration; provided, however, (a) before making any such deduction or withholding, Purchaser shall give Seller notice of the intention to make such deduction or withholding (such notice, which shall include the authority, basis and method of calculation for the proposed deduction or withholding, shall be given at least a commercially reasonable period of time before such deduction or withholding is required, other in order for Seller to obtain reduction of or relief from such deduction or withholding); (b) Purchaser shall cooperate with Seller to the extent reasonable in efforts to obtain reduction of or relief from such deduction or withholding; and (c) Purchaser shall timely remit to the appropriate Governmental Authority resolve any and all amounts so deducted or withheld and timely file all Tax Returns and provide to Seller such information statements and other documents required to be filed or provided under applicable Tax Lawmatters in dispute as soon as possible. Purchaser shall provide Seller with evidence of payment and Seller's accountants full access to the appropriate taxing authorities of Transferred Books and Records, to any other information, and to its employees, and shall cooperate with Seller, to the withheld Withholding Taxes. If extent necessary for any reason Seller to calculate the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, such required Withholding Taxes not withheld shall remain Retained Liabilities despite such non-withholdingNet Margin. (d) Purchaser shall execute and deliver an Assignment and Assumption Agreement, a form of which is attached hereto as Exhibit F (the “Assignment and Assumption Agreement”), evidencing the assignment by Seller of certain of the Purchased Assets and the assumption by Purchaser of the Assumed Liabilities.