AND
(XI)
ALL LIABILITIES TO THE EXTENT ARISING OUT OF ACTIONS RELATING TO
THE MATTERS CONSTITUTING EXCLUDED LIABILITIES SPECIFIED IN THE FOREGOING CLAUSES
(I) - (X) OF THIS SECTION 2.02(B).
SECTION 2.03.
Purchase Price; Allocation of Purchase Price.
(a)
Subject to
the adjustments set forth in Section 2.07, the purchase price for the Purchased
Assets shall be $80 million (such amount less the Employee Amounts, the
"Purchase Price").
The Purchaser shall deduct $250,000 from the Purchase Price
in respect of the commercial activities Tax and sales and use Taxes of the State
of Ohio and such amount shall be remitted by the Purchaser to the appropriate
Governmental Authority on a timely basis or at the request of the Seller, if
permitted by applicable Law, paid over by the Purchaser to the Seller upon
delivery by the Seller to the Purchaser of an official receipt, certification or
other statement from the Governmental Authority that such Taxes have been paid
to the Governmental Authority on a timely basis or that no such Taxes are due.
(B)
THE SUM OF THE PURCHASE PRICE AND THE ASSUMED LIABILITIES AND ANY
OTHER CONSIDERATION PAYABLE BY THE PURCHASER HEREUNDER SHALL BE ALLOCATED AMONG
THE PURCHASED ASSETS AS OF THE CLOSING IN ACCORDANCE WITH SECTION 1060 OF THE
CODE AND THE REGULATIONS THEREUNDER (THE "ALLOCATION").
WITHIN 30 BUSINESS DAYS
AFTER THE FINALIZATION OF ANY PURCHASE PRICE ADJUSTMENT PURSUANT TO SECTION 2.07
BUT IN ANY EVENT, NO LATER THAN 90 CALENDAR DAYS AFTER THE CLOSING DATE, THE
PURCHASER SHALL PROVIDE THE SELLER WITH A PROPOSED ALLOCATION FOR THE SELLER'S
REVIEW AND COMMENT.
IF THE SELLER DOES NOT PROVIDE ANY COMMENTS TO THE
PURCHASER IN WRITING WITHIN 45 BUSINESS DAYS FOLLOWING DELIVERY BY THE PURCHASER
OF THE PROPOSED ALLOCATION, THEN THE ALLOCATION PROPOSED BY THE PURCHASER SHALL
BE DEEMED TO BE FINAL AND BINDING ABSENT MANIFEST ERROR.
IF, HOWEVER THE SELLER
SUBMITS COMMENTS TO THE PURCHASER WITHIN SUCH 45-BUSINESS DAY PERIOD, THE
PURCHASER AND THE SELLER SHALL NEGOTIATE IN GOOD FAITH TO RESOLVE ANY
DIFFERENCES WITHIN 30 BUSINESS DAYS.
IF THE SELLER AND THE PURCHASER ARE UNABLE
TO REACH A RESOLUTION WITHIN SUCH 30-BUSINESS DAY PERIOD, THEN ALL REMAINING
DISPUTED ITEMS SHALL BE SUBMITTED FOR RESOLUTION BY AN INTERNATIONALLY
RECOGNIZED, INDEPENDENT ACCOUNTING FIRM MUTUALLY SELECTED BY THE PURCHASER AND
THE SELLER (THE "ALLOCATION ACCOUNTING FIRM"), WHICH SHALL MAKE A FINAL
DETERMINATION AS TO THE DISPUTED ITEMS WITHIN 30 BUSINESS DAYS AFTER SUCH
SUBMISSION, AND SUCH DETERMINATION SHALL BE FINAL, BINDING AND CONCLUSIVE ON THE
SELLER AND THE PURCHASER ABSENT MANIFEST ERROR.
THE FEES AND DISBURSEMENTS OF
THE ALLOCATION ACCOUNTING FIRM SHALL BE SHARED EQUALLY BETWEEN THE SELLER AND
THE PURCHASER.
ANY SUBSEQUENT ADJUSTMENTS TO THE SUM OF THE PURCHASE PRICE AND
ASSUMED LIABILITIES AND ANY OTHER
21
CONSIDERATION PAYABLE BY THE PURCHASER HEREUNDER SHALL BE REFLECTED IN THE
ALLOCATION IN A MANNER CONSISTENT WITH SECTION 1060 OF THE CODE AND THE
REGULATIONS THEREUNDER.
FOR ALL TAX PURPOSES, EACH OF THE PURCHASER, PARENT AND
THE SELLER AGREE THAT THE