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we need only determine whether petitioner has met its usual
burden of proof with respect to the purchase price of the assets
of the IGD. Rule 142(a).
Mr. Breber, who was in charge of negotiating the purchase of
the assets of the IGD on petitioner's behalf, testified8 that the
purpose behind the post-closing adjustment provision in the
Contract was to balance the anticipated increase in the value of
petitioner's shares from the Contract date until the closing date
with additional assets of the IGD to be delivered at closing.
According to Mr. Breber, the industrial gas industry, of
which petitioner and Chemetron were a part, is a capital
intensive industry. In order to maintain profitability, a
certain percentage of annual earnings must be reinvested in fixed
assets. Petitioner's policy was to retain approximately 25
percent of its pre-tax earnings, which was generally in
accordance with the industry norm. An additional 25 percent of
petitioner's pre-tax earnings was generally paid out to the
shareholders as dividends. Because the transaction required the
approval of the FTC before it could close, the parties
anticipated a delay between the signing of the Contract and the
closing of the transaction. During the course of such delay, Mr.
8Because Mr. Breber would be unavailable to testify at trial, the parties
examined him under oath before an independent stenographer. The examination
was recorded, and a transcript thereof was admitted in evidence. The parties
stipulated that if Mr. Breber were called to testify at trial, his testimony
would be as set forth in the admitted transcript.
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