Purchase Price; Allocation of Purchase Price (a) Subject to the terms and conditions of this Agreement, at the Closing, Abbott, on behalf of itself and the other Purchasers, shall pay to Guidant, on behalf of itself and the Sellers (except (i) as required by applicable Law, in which case the applicable Asset Purchaser shall pay locally to the applicable Asset Seller, (ii) as set forth in Schedule 2.02(e), in which case the applicable IP Purchaser shall pay to Guidant on behalf of the applicable IP Seller, or (iii) as set forth in Section 2.06 with respect to a Deferred Local Closing), an aggregate purchase price for the Purchased Assets and the Shares in an amount in cash equal to $4,100,000,000 (the “Initial Purchase Price”). At the Closing, the Purchasers shall assume the Assumed Liabilities. The Initial Purchase Price, the Assumed Liabilities and the Milestone Payments are collectively referred to herein as the “Purchase Price”. Except as otherwise provided in the parenthetical of Section 2.08(a), the Initial Purchase Price shall be paid at the Closing by wire transfer in immediately available funds to a bank account designated in writing by Guidant no later than three Business Days prior to the Closing. Abbott shall make any required withholding of Taxes from the Purchase Price and shall pay Guidant the Purchase Price net of any such withholding. Abbott shall have no obligation to gross-up, indemnify or otherwise compensate Guidant for any withholding Tax due or imposed with respect to the Purchase Price. No later than five days prior to the Closing, Abbott shall provide Schedule 2.04(a) to Guidant which shall set forth the jurisdictions in which Abbott or the other applicable Purchasers intend to withhold Taxes on payment of the Purchase Price.
(b) No later than five days prior to the Closing, Abbott shall provide Guidant with an allocation of the Purchase Price by country based on an estimate of the fair market values of the Shares and Purchased Assets (the “Estimated Country Allocation”). As soon as practicable, and in any event not later than five days prior to (i) the latest date required by applicable Law and (ii) seventy days after the Closing, Abbott shall provide for Guidant’s review and comments (A) an allocation of the Purchase Price among the Shares and the Purchased Assets by country based on the fair market values of such Shares and Purchased Assets (the “Country Allocation”), and (B) if required by applicable Law, an allocation by asset category within a particular country (the “In-Country Allocation”). Guidant shall have the right to consent to the Estimated Country Allocation and the In-Country Allocation, which consent shall not be unreasonably withheld or delayed. If Guidant and Abbott are unable to reach agreement on the Country Allocation within five days following the relevant date provided in Section 2.04(b)(ii), the Country Allocation shall be determined by an internationally-recognized independent accounting firm mutually selected by Abbott and Guidant (the “Country Allocation Accounting Firm”) using customary valuation methodologies; provided, however, that the Country Allocation Accounting Firm shall make its determination within thirty days following the date provided in Section 2.04(b)(ii). The determination made by the Country Allocation Accounting Firm shall be, absent manifest error, final and binding on Guidant, on behalf of itself and the Sellers, and Abbott, on behalf of itself and the other Purchasers. The fees and expenses of the Country Allocation Accounting Firm shall be shared equally between Guidant and Abbott. Guidant, on behalf of itself and the Sellers, and Abbott, on behalf of itself and the other Purchasers, shall acknowledge that the Country Allocation and In-Country Allocation will be done at arm’s length based upon a good faith determination of fair market values.
(c) Each of Guidant, Abbott and each of their respective Affiliates shall (i) be bound by the Country Allocation and the In-Country Allocation for purposes of determining any Taxes, and (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with the Country Allocation and the In-Country Allocation. None of Guidant, Abbott or their respective Affiliates shall take any position inconsistent with the Country Allocation or the In-Country Allocation in any Tax Return, in any refund claim, in any litigation, or otherwise unless required by final determination by an applicable taxing authority. In the event that the Country Allocation or the In-Country Allocation is disputed by any taxing authority, the party receiving notice of the dispute shall promptly notify the other party hereto, and Abbott and Guidant agree to use their best efforts to defend such Country Allocation or such In-Country Allocation in any audit or similar proceeding.
Post-Closing Purchase Price Adjustment 1.9.1 Within ninety (90) days following the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Purchaser a statement (the “Closing Net Working Capital Statement”) which shall set forth the Net Working Capital of the Newsprint Business and of Apache as of the Closing Time (which shall be set forth separately for each of the Newsprint Business and Apache, but as aggregated shall be referred to as the “Closing Net Working Capital”) and shall be prepared in accordance with Seller’s past accounting methods, policies, practices and procedures and in the same manner, with consistent classification and estimation methodology, as the Financial Statements were prepared, except that the Excluded Assets and the Newsprint Retained Obligations shall be excluded. The Closing Net Working Capital Statement may not be amended by Seller after it is delivered to Purchaser.
1.9.2 Purchaser shall, within thirty (30) days after the delivery of the Closing Net Working Capital Statement to it, complete its review of the Closing Net Working Capital reflected on the Closing Net Working Capital Statement. If Purchaser wishes to dispute the Closing Net Working Capital, Purchaser shall notify Seller in writing in reasonable detail of such disagreement and any reason therefore (“Purchaser’s Objection”), setting forth a specific description of the basis of Purchaser’s Objection and the adjustments to the Closing Net Working Capital that Purchaser believes should be made, on or before the last day of such thirty (30) day period, which Purchaser’s Objection may not be amended by Purchaser after it is delivered to Seller (except to withdraw any such Purchaser’s Objection). Any items on the Closing Net Working Capital Statements not disputed in Purchaser’s Objection shall be irrevocably deemed to be accepted by Purchaser. Seller shall then have thirty (30) days to review and respond to Purchaser’s Objection. If Seller and Purchaser are unable to resolve all of their disagreements with respect to the determination of the foregoing items within thirty (30) days following Seller’s receipt of Purchaser’s Objection (the “Negotiation Period”), they shall refer their remaining differences to a mutually agreeable independent accounting firm of national recognition (other than an independent accounting firm utilized by any of Seller, Apache or Purchaser or any Affiliate of any of the foregoing within the past three (3) years) acceptable to both Seller and Purchaser or if Seller and Purchaser are unable to agree as to such third party accounting firm within ten (10) days after the conclusion of the Negotiation Period, either Seller or Purchaser may request that the Chairman of the American Arbitration Association (or the nominated representative of the Chairman) appoint a third party accounting firm meeting the aforementioned requirements to resolve the dispute (the accounting firm selected being referred to as the “CPA Firm”), who shall determine, only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Net Working Capital requires adjustment. The procedure and schedule under which any dispute shall be submitted to the CPA Firm shall be as follows:
(a) Within ten (10) days after the later of (i) the end of the Negotiation Period and (ii) the selection of the CPA Firm, Purchaser shall submit any unresolved elements of the Purchaser’s Objection to the CPA Firm in writing (with a copy to Seller), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute a withdrawal by Purchaser of the Purchaser’s Objection with respect to any unresolved element to which such failure relates.
(b) Within fifteen (15) days following Purchaser’s submission of the unresolved elements of the Purchaser’s Objection as specified in sub-clause (a) above, Seller shall submit its response to the CPA Firm in writing (with a copy to Purchaser), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute an acceptance by Seller with respect to any unresolved elements to which such failure relates.
(c) The CPA Firm shall deliver its written determination to Purchaser and Seller no later than the thirtieth (30th) day after the remaining differences underlying Purchaser’s Objection are referred to the CPA Firm, or such longer period of time as the CPA Firm determines is necessary.
