AGREEMENT, PROVIDED,
HOWEVER, THAT, IF THE AGGREGATE DEPRECIATED BOOK VALUE OF THE PURCHASED ASSETS
DESCRIBED IN SECTION 2.01(A)(IV), AS REFLECTED ON THE SELLER'S OR BTI'S BALANCE
SHEET, AS THE CASE MAY BE, AS OF THE CLOSING DATE (TO BE PREPARED BY THE SELLER
AND BTI ON OR PRIOR TO THE CLOSING DATE IN ACCORDANCE WITH KOREAN GAAP ON A
BASIS CONSISTENT WITH THE PAST PRACTICES OF THE SELLER OR BTI, AS THE CASE MAY
BE, AND CONVERTED INTO U.S. DOLLARS AT THEN-PREVAILING EXCHANGE RATES), EXCEEDS
U.S. $1,500,000, THEN THE PURCHASER SHALL PAY TO THE SELLER, AT THE CLOSING, AN
ADDITIONAL AMOUNT EQUAL TO THE AMOUNT BY WHICH THE AGGREGATE DEPRECIATED BOOK
VALUE OF THE PURCHASED ASSETS DESCRIBED IN SECTION 2.01(A)(IV) EXCEEDS
U.S. $1,500,000; IT BEING AGREED AND UNDERSTOOD THAT, IF THE SELLER OR BTI, AS
THE CASE MAY BE, IN GOOD FAITH IS UNABLE TO PREPARE SUCH BALANCE SHEETS ON OR
BEFORE THE CLOSING, THE PARTIES SHALL IN GOOD FAITH AGREE UPON A REASONABLE
ESTIMATE OF SUCH DEPRECIATED BOOK VALUE FOR PURPOSES OF THE CLOSING AND SHALL
CONFIRM SUCH DEPRECIATED BOOK VALUE AND, IF NECESSARY, RECONCILE ANY ADDITIONAL
PAYMENT AS SOON AS PRACTICABLE AFTER THE CLOSING; AND
(II)
THE PURCHASER SHALL RETAIN U.S. $[***] (THE "HOLDBACK AMOUNT")
AND, PURSUANT TO SECTION 2.07, SHALL PAY THE SELLER (SUBJECT TO SECTION 2.03(D))
A PORTION OR ALL OF SUCH AMOUNT ON SUCH DATES AS SPECIFIED IN SECTION 2.07.
(B)
THE PURCHASER SHALL PAY, ON OR BEFORE 180 DAYS AFTER THE CLOSING
DATE, TO THE SELLER (SUBJECT TO SECTION 2.03(D)) U.S. $[***] IF AND ONLY IF THE
CONTINGENT PAYMENT CONDITION IS SATISFIED ON OR BEFORE 5:00 P.M. (SEOUL, KOREA
TIME) ON THE DATE [***] FROM THE CLOSING DATE.
FOR PURPOSES OF THIS AGREEMENT,
THE "CONTINGENT PAYMENT CONDITION" SHALL BE SATISFIED AT SUCH TIME AS [***].
(C)
THE PURCHASE PRICE SET FORTH IN SECTION 2.03(A)(I), AND (II) SHALL
BE ALLOCATED AMONG THE PURCHASED ASSETS AND THE COVENANTS CONTAINED IN
SECTION 5.08 AS OF THE CLOSING DATE IN ACCORDANCE WITH AN ALLOCATION TO BE
MUTUALLY AGREED UPON BEFORE THE CLOSING (THE "ALLOCATION").
FOR ALL TAX
PURPOSES, THE PURCHASER AND THE SELLER AGREE TO REPORT THE TRANSACTIONS
CONTEMPLATED IN THIS AGREEMENT IN A MANNER CONSISTENT WITH THE TERMS OF THIS
AGREEMENT, INCLUDING THE ALLOCATION, AND THAT NEITHER THE SELLER NOR THE
PURCHASER SHALL TAKE ANY POSITION INCONSISTENT THEREWITH IN ANY TAX RETURN, IN
ANY REFUND CLAIM, IN ANY LITIGATION, OR OTHERWISE.
(D)
ANY AND ALL PAYMENTS MADE TO THE SELLER PURSUANT TO
SECTION 2.03(A)(I), 2.03(A)(II) OR 2.03(B) SHALL BE USED PROMPTLY BY THE SELLER
TO PAY OBLIGATIONS OWED TO CREDITORS OF THE SELLER; PRIOR TO ANY PAYMENTS TO THE
SELLER PURSUANT TO SECTIONS 2.03(A)(I), 2.03(A)(II) OR 2.03(B), THE SELLER SHALL
PRESENT TO THE PURCHASER FOR APPROVAL, WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED, A LIST OF SUCH CREDITORS AND THE AMOUNTS TO BE PAID TO EACH
10
SUCH CREDITOR, PROVIDED THAT PART OR ALL OF THE PAYMENTS PURSUANT TO
SECTIONS 2.03(A)(I) SHALL FIRST BE