Form Apa - Asset Purchase Agreement Page 9
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ARTICLE II
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PURCHASE AND SALE OF ASSETS
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2.1
Transfer of Purchased Assets
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Upon the terms and subject to the conditions contained herein, at the Closing,
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Seller agrees to sell, convey, transfer, assign and deliver, or cause to be sold, conveyed,
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transferred, assigned and delivered to Buyer, all of Seller's and Seller's Affiliates' right,
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title and interest in, to and under the Purchased Assets, and Buyer agrees to purchase the
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Purchased Assets.
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2.2
Assumption of Assumed Liabilities
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At the Closing, Buyer shall, concurrently with its purchase of the Purchased
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Assets, assume the Assumed Liabilities upon the terms and subject to the conditions
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contained herein.
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2.3
Purchase Price
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At the Closing, in consideration of the sale, transfer, assignment, conveyance and
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delivery of the Purchased Assets, Buyer shall (a) pay to Seller an amount equal to
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$[(_______)] (the "Base Purchase Price"), by wire transfer of immediately available
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funds to an account designated by Seller, and (b) assume the Assumed Liabilities
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pursuant to this Agreement. Buyer and Seller shall use their best efforts to agree upon an
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allocation of the Base Purchase Price and Assumed Liabilities (to the extent taken into
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account under Section 1060 of the Code) among the Purchased Assets in the manner
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required by Section 1060 of the Code. If such agreement is reached, Buyer and Seller
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agree to report this transaction for federal and state income tax purposes in accordance
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with such allocation and to use reasonable efforts to sustain such allocation in any
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subsequent tax audit or dispute.
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2.4
Net Working Capital Adjustment
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(a)
Within sixty (60) calendar days after the Closing Date, Seller shall
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deliver to Buyer a statement setting forth its calculation of the Net Working Capital as of
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the Closing Date, prepared as described herein in accordance with the definition of Net
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Working Capital (the "Statement of Net Working Capital"). Buyer shall have the right to
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review and examine the procedures, books, records and work papers used in Seller's
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preparation of the Statement of Net Working Capital.
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(b)
Unless Buyer notifies Seller in writing, within thirty (30) calendar
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days after receipt of the Statement of Net Working Capital, that Buyer objects to the
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computation contained therein, specifying in detail the basis for such objection, Seller's
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calculation of the closing Net Working Capital shall be binding upon the parties. The
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calculation of the Net Working Capital shall not be disputed as to accounting principles
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so long as the principles and procedures used to compute it are consistent with those used
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by Seller in preparing the Financial Statements. If Buyer and Seller are unable to agree
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upon the calculation of Net Working Capital within thirty (30) calendar days after any
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