Form Apa - Asset Purchase Agreement Page 10
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such notification has been given by Buyer (or within such extended time period as is
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mutually agreed to by the parties), the controversy shall be referred for a final
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determination to [__________________]. Such determination shall be binding upon the
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parties, absent manifest error. The parties shall share equally the fees and expenses of
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such firm.
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(c)
The Base Purchase Price shall be either increased by the amount
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by which the final closing Net Working Capital exceeds $[__________] or decreased by
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the amount by which $[___________] exceeds the final amount of Net Working Capital
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(the Base Purchase Price as so increased or decreased being referred to herein as the
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"Final Purchase Price").
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(d)
Any Base Purchase Price adjustment payment required under
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Section 2.4(d) shall be delivered in accordance with the instructions of the appropriate
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recipient, together with interest thereon for each day from and including the Closing Date
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to and excluding the date paid, at a rate per annum equal to the Interest Rate, (i) within
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the lesser of thirty-five (35) calendar days after delivery by Seller of the Statement of Net
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Working Capital, or five (5) calendar days after Buyer notifies Seller that it does not
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object to the Statement of Net Working Capital; or (ii) if Buyer shall have objected to the
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Statement of Net Working Capital, within five (5) calendar days following final
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determination of the disputed items pursuant to Section 2.4(c).
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2.5
Taxes
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(a)
Except as otherwise provided in this Agreement, all Taxes in
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respect of the Purchased Assets and income of the Business for the period or portions of
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periods ending prior to the Closing Date shall be borne by the Seller. Except as
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otherwise provided in this Agreement, all Taxes in respect of the Purchased Assets and
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income of the Business for the period or portions of periods beginning on and after the
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Closing Date shall be borne by the Buyer.
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(b)
If Buyer or Seller pays any Tax agreed to be borne by the other
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party under this Agreement, such other party shall promptly (within ten (10) business
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days of receipt of written notice from such paying party) reimburse the paying party for
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the amounts so paid. If any party receives any refund or credit of Tax to which another
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party is entitled under this Agreement, the receiving party shall promptly (within 10 days)
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pay such amounts to the party entitled thereto.
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2.6
Closing Costs; Transfer Taxes and Fees
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Buyer shall pay the cost of all sales, use and transfer Taxes arising out of the
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transfer of the Purchased Assets pursuant to this Agreement and shall pay all costs and
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expenses incurred in connection with obtaining or recording title to the Purchased Assets.
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The sales, use and transfer tax returns required by reason of the transfer of the Purchased
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Assets pursuant to this Agreement shall be timely prepared and filed by the party initially
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obligated by law or regulation to make such filing. The parties agree to cooperate with
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each other in connection with the preparation and filing of such returns, in obtaining all
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