Adjustment to Consideration. (a) Within 60 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an Adjusted Balance Sheet. If Parent elects to prepare the Adjusted Balance Sheet, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of the Company. If there are any Excess Liabilities, then the amount equal to such Excess Liabilities shall be paid to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent's regular Illinois business hours to those books and records of the Company in the possession of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicable.
Appears in 1 contract
Adjustment to Consideration. (a) Within 60 If, within 15 days following the Closing Date, Parent shall or the Stockholder Representative (each, an “Electing Party”) notifies the other party (the “Non- Electing Party”) that it is disputing the results of the Closing Date Balance Sheet that was used to determine whether there are any Excess Liabilities or Excess Assets the Balance Sheet Adjustment Amount pursuant to Section 1.6(a), such Electing Party shall, within 45 days following the Closing Date, cause to be prepared and delivered to the Non- Electing Party, an unaudited balance sheet of the Surviving Corporation as of the Closing and give Date (the Shareholder Representative notice of such determination“Adjusted Balance Sheet”). For purposes of making such calculation, Parent may use either the Closing The Adjusted Balance Sheet or will be prepared in accordance with GAAP (except that the Adjusted Balance SheetSheet may omit footnotes and other presentation items that may be required by GAAP and shall include the adjustments set forth in Schedule 1.6(a)(i) hereto and in all events shall be consistent with the last two sentences of the definition of Balance Sheet Adjustment Amount above) consistently applied on a basis consistent with the calculation of the Trial Run and presenting such Electing Party’s good faith estimate of the balance sheet of the Surviving Corporation as of the close of business on the day immediately prior to the Closing. For purposes In the event that, pursuant to the terms of this AgreementSection 8.6, it is finally determined that the amount by which of (i) the Company's ’s total current assets (as defined by and as determined in accordance with GAAP and consistent with past practicesGAAP) as of at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the Company's total ’s current liabilities (as defined by and as determined in accordance with GAAP and consistent with past practices) as of at the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an Adjusted Balance Sheet. If Parent elects to prepare reflected on the Adjusted Balance SheetSheet (collectively, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of “Net Assets at Closing”) exceeds (iii) the Company. If there are any Excess LiabilitiesBalance Sheet Adjustment Amount, then the an amount equal to such difference (the “Excess Liabilities Assets”) shall be paid to the Stockholders pursuant to Section 1.6(c). In the event that, pursuant to the terms of this Section 8.6 it is determined that the Net Assets at Closing is less than the Balance Sheet Adjustment Amount, then an amount equal to such difference (the “Excess Liabilities”) shall be paid to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 hereof8.4 hereof on a dollar-for-dollar basis, and the Deductible Amount shall not apply to Parent’s right to payment for Excess Liabilities from the Escrow Fund. If there are Excess AssetsParent shall, within 10 days after at the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion request of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using Stockholder Representative if the Stockholder Representative is the Electing Party, prepare the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent to the Shareholder Representative on behalf of the Adjusted Balance Sheet, Electing Party. Parent shall give and shall cause the Shareholder Surviving Corporation to give the Stockholder Representative and its accountant reasonable access during Parent's ’s regular Illinois business hours to those books and records and work papers of the Company Surviving Corporation in the possession or control of Parent and or the Surviving Corporation and, in the event that the Stockholder Representative is the Non- Electing Party, any personnel which relate to of Parent or the preparation of Surviving Corporation who prepared the Adjusted Balance Sheet Sheet, for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableNet Assets at Closing.
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Adjustment to Consideration. (a) Within 60 days following It is acknowledged and agreed that at the Closing Date, Parent Completion Date the Company shall determine whether there are not have any Excess Liabilities or Excess Assets as Debt and that the Working Capital of the Closing Company shall be Euro 0 at Completion. Any actions of Xxxxxxxx to achieve the Company being free of any Debt or to achieve a Working Capital of Euro 0, shall not have any adverse tax effect of whatsoever nature for the Company and give for SBS. It is, furthermore, acknowledged and agreed that in the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either event that the Closing Completion Balance Sheet or differs from the Adjusted Pro Forma Completion Balance SheetSheet a recalculation shall take place of the Consideration, whereby each item on such balance sheets shall be taken into account and compared. For purposes The aggregate amount resulting from such comparison, which would result in an adjustment to the Consideration as set out in clause 6 in accordance with the provisions of this Agreement, clause 10.10 shall be equal to the amount by which the net asset value as shown in the Completion Balance Sheet shall differ from the net asset value as shown in the Pro Forma Balance Sheet (ithe Aggregate Amount) and be settled as follows: If the Company's total assets (as defined by and determined parties did not refer the item or items in accordance with GAAP and consistent with past practices) as dispute of the Closing Date minus Pro Forma Completion Balance Sheet (iithe Disputed Items) to the Company's total liabilities (Independent Accountants in an earlier stage as defined set out in clause 7.3 the parties shall discuss the Disputed Items and try to reach an understanding regarding the Disputed Items within five Business Days following one year after Signing. If no agreement has been reached the Disputed Items shall be determined by the Independent Accountants, whereupon a comparison between the Pro Forma Completion Balance Sheet and determined the Completion Balance Sheet on an item for item basis shall be made as set forth in accordance with GAAP and consistent with past practices) as this clause 7.5. Upon finalisation of such comparison the parties shall enter into discussions regarding the way of settlement of the Closing Date is less than or exceeds $7,000,000.00 Aggregate Amount. If parties have not reached an understanding regarding the way of settlement within thirty days following the finalisation of aforementioned comparison, the Aggregate Amount shall be the "Excess Liabilities" settled either in cash or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an Adjusted Balance Sheet. If Parent elects to prepare the Adjusted Balance Sheet, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of the Company. If there are any Excess Liabilities, then the amount equal to such Excess Liabilities shall be paid to Parent out of the Escrow Fund kind in accordance with the terms provisions of Section 8.3 hereofclause 10.10 of this agreement, it being understood that there shall be disregard of the Aggregate Amount in the event such amount is less than Euro 75,000. If there are Excess Assetsthe Aggregate Amount is Euro 75,000 or more, within 10 days after this amount shall be taken into account when determining whether the date Parent has made threshold set out in clause 11.1(b) is met, which threshold shall also apply in relation to the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion settlement of the amount of Excess AssetsAggregate Amount. If Parent calculates the parties had referred the Disputed Items to Independent Accounts as set out in clause 7.3, the parties shall enter into discussions regarding the way of settlement of the Aggregate Amount one year following the Signing. If parties have not reached an understanding regarding the way of settlement within thirty days following one year after Signing, the Aggregate Amount shall be settled either in cash or in kind in accordance with the provisions of clause 10.10 of this agreement, it being understood that there shall be disregard of the Aggregate Amount in the event such amount is less than Euro 75,000. If the Aggregate Amount is Euro 75,000 or more, this amount shall be taken into account when determining whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheetthreshold set out in clause 11.1(b) is met, then Parent which threshold shall deliver also apply in relation to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent to the Shareholder Representative settlement of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent's regular Illinois business hours to those books and records of the Company in the possession of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableAggregate Amount.
Appears in 1 contract
Samples: Agreement (SBS Broadcasting S A)
Adjustment to Consideration. (a) Within 60 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at After the Closing, all Third Party Expenses Buyer shall deliver to Seller a statement (based on draft Tax Returns of Lion and Contingent Closing Payments shall be considered as liabilities Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Company as Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Closing for purposes Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the above Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. As noted above, instead In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to any disputed amount (or such later date as may be prepared an Adjusted Balance Sheet. If Parent elects to prepare the Adjusted Balance Sheet, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of the Company. If there are any Excess Liabilitiesagreed by Buyer and Seller), then the amount equal to Parties will resolve such Excess Liabilities shall be paid to Parent out of the Escrow Fund dispute in accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations procedures set forth in this Section 8.6 and any disputes regarding Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such calculations have been finally resolved as provided below, Parent shall pay determination by wire transfer of immediately available funds to each Shareholder who has surrendered such Shareholder's Certificates as provided an account or accounts designated in Section 7.1(a) above such Shareholder's Pro Rata Portion of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery writing by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent's regular Illinois business hours to those books and records of the Company in the possession of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableBuyer.
Appears in 1 contract
Adjustment to Consideration. (a) Within 60 45 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared and delivered to the Shareholder Representative an unaudited balance sheet of the Company as of the Closing Date (the “Adjusted Balance Sheet”). If Parent elects to prepare the The Adjusted Balance Sheet, such document shall Sheet will be prepared in accordance with GAAP consistently applied on a basis consistent with the most recent regularly prepared financial statements Financials. In the event that, pursuant to the terms of the Company. If there are any Excess Liabilitiesthis Section 8.8(a), then it is determined that the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal to such difference (“Excess Liabilities Liabilities”) shall be paid to Parent out of and shall not be limited by the Threshold Amount or the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) the Escrow Fund in accordance with or (y) the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 Shareholders and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Participating Optionholders based on their respective Pro Rata Portion Portion. For purposes of the amount this calculation, Third Party Expenses shall not be considered as part of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Datetotal current liabilities. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent's ’s regular Illinois California business hours to those books and records of the Company in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableNet Assets at Closing.
Appears in 1 contract
Adjustment to Consideration. (ag) Within 60 As promptly as possible, but in any event within ninety (90) days following after the Closing Date, the Purchaser shall deliver to the Ultimate Parent shall determine whether there are any Excess Liabilities or Excess Assets a consolidated balance sheet of the Company and its Subsidiary (the “Closing Balance Sheet”) as of the close of business on the day immediately preceding the Closing Date and give a statement showing the Shareholder Representative notice calculation of the Net Working Capital derived from the Closing Balance Sheet, the actual Cash and the actual Indebtedness of the Company and its Subsidiary outstanding as of immediately prior to the Closing (other than Indebtedness of the Company or its Subsidiary referenced in clause (vii) of the definition of Indebtedness to the extent released as of the Closing) (together with the Closing Balance Sheet, the “Preliminary Net Working Capital Statement”). The Closing Balance Sheet shall be prepared and the Net Working Capital, Cash and Indebtedness shall be determined on a consolidated basis using the accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as set forth on Section 1.04 of the Disclosure Schedules and consistent with this Section 1.04 and the definitions contained in this Agreement. The parties agree that the purpose of preparing the Closing Balance Sheet and determining Net Working Capital, actual Cash and actual Indebtedness and the related purchase price adjustment contemplated by this Section 1.04 is to measure changes in Net Working Capital, Cash and Indebtedness consistent with this Section 1.04 and such determination. For purposes processes are not intended to permit the introduction of making such calculationdifferent judgments, Parent may use either accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Balance Sheet or determining Net Working Capital, Cash or Indebtedness consistent with this Section 1.04, and shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the Adjusted Balance Sheettransactions contemplated hereby. For purposes forty-five (45) days after the Purchaser’s delivery of this Agreementthe Preliminary Net Working Capital Statement, the amount by which (i) Ultimate Parent and its accountants shall be permitted access to review the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as Purchaser’s work papers related to the preparation of the Closing Date minus (iiPreliminary Net Working Capital Statement; provided that such access shall occur only during normal business hours and upon reasonable notice to the Purchaser. The Ultimate Parent’s right of access under this Section 1.04(a) shall terminate immediately upon the Company's total liabilities (as defined by final determination of Net Working Capital pursuant to this Section 1.04(a). The Ultimate Parent and determined in accordance with GAAP and consistent with past practices) as its accountants may make inquiries of the Closing Date Purchaser and its accountants regarding questions concerning, or disagreements with, the Preliminary Net Working Capital Statement (including the Purchaser’s statement of the actual Cash and actual Indebtedness) arising in the course of their review thereof. If the Ultimate Parent has any objections to the Preliminary Net Working Capital Statement (including the Purchaser’s statement of the actual Cash and actual Indebtedness), it shall deliver to the Purchaser a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is less than or exceeds $7,000,000.00 not delivered to the Purchaser within forty-five (45) days after delivery of the Preliminary Net Working Capital Statement, the Preliminary Net Working Capital Statement shall be final, binding and non-appealable by the "Excess Liabilities" parties hereto. The Purchaser and the Ultimate Parent shall negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within fifteen (15) days after the delivery of the Objections Statement, the Purchaser and the Ultimate Parent shall submit such dispute to Duff & Xxxxxx LLC (the “Dispute Resolution Auditor”). Any subsequent submissions to the Dispute Resolution Auditor must be written and delivered to the other party. The Dispute Resolution Auditor shall consider only those items and amounts which are identified in the Objections Statement as being items which the Purchaser and the Ultimate Parent are unable to resolve. The Dispute Resolution Auditor’s determination will be based solely on the definition and method of calculation of Net Working Capital, Cash and Indebtedness contained or "Excess Assets," referred to (as the case may be; provided) herein. The Purchaser and the Ultimate Parent shall use their commercially reasonable efforts to cause the Dispute Resolution Auditor to resolve all disagreements as soon as practicable. Further, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments Dispute Resolution Auditor’s determination shall be considered as liabilities of based solely on the Company as of presentations by the Closing for purposes of Ultimate Parent and the above calculation. As noted abovePurchaser, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an Adjusted Balance Sheet. If Parent elects to prepare the Adjusted Balance Sheet, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of the Company. If there which are any Excess Liabilities, then the amount equal to such Excess Liabilities shall be paid to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations and procedures set forth in this Section 8.6 Agreement (i.e., not on the basis of an independent review). The resolution of the dispute by the Dispute Resolution Auditor shall be final, binding and any disputes regarding such calculations have been finally resolved as provided below, non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Auditor shall be allocated between the Ultimate Parent shall pay and the Purchaser based upon the percentage which the portion of the contested amount not awarded to each Shareholder who has surrendered party bears to the amount actually contested by such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion party. For example, if the Ultimate Parent claims the Net Working Capital is $1,000 greater than the amount determined by the Purchaser’s accountants, and the Purchaser contests only $500 of the amount claimed by the Ultimate Parent, and if the Dispute Resolution Auditor ultimately resolves the dispute by awarding the Ultimate Parent $300 of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet$500 contested, then Parent shall deliver the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent Purchaser and 40% (i.e., 200 ÷ 500) to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Ultimate Parent's regular Illinois business hours to those books and records of the Company in the possession of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicable.
Appears in 1 contract
Adjustment to Consideration. (a) Within 60 forty-five (45) days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an and delivered to the Stockholder Representative unaudited balance sheets of the Surviving Corporation and its Subsidiaries as of the Closing Date (the “Adjusted Balance SheetSheets”). If Parent elects to prepare the The Adjusted Balance Sheet, such document shall Sheets will be prepared in accordance with GAAP consistently applied on a basis consistent with the most recent regularly prepared financial statements Financials and shall include without limitation all Estimated Third Party Expenses that have been accrued but that have not been paid prior to the Effective Time, any payments to Terminating Employees for severance or similar payments and any other payments triggered or accelerated by or contingent upon the Closing or the Merger. In the event that, pursuant to the terms of the Company. If there are any Excess Liabilitiesthis Section 9.6(a), then it is determined that (i) the amount equal to such (A) the absolute value of the Company’s and its Subsidiaries’ total liabilities (as defined by and as determined in accordance with GAAP and shall include without limitation all Estimated Third Party Expenses that have been accrued but that were not paid prior to the Effective Time and any other payments triggered or accelerated by or contingent upon the Closing or the Merger, but shall exclude deferred revenue and the Specified Liabilities) at the Closing Date as reflected on the Adjusted Balance Sheets minus (B) the absolute value of the Company’s and its Subsidiaries’ total assets (as defined by and as determined in accordance with GAAP) at the Closing Date (collectively, the “Net Liabilities at Closing”) minus (C) the Balance Sheet Adjustment Amount, is a number greater than the Balance Sheet Target, and/or (ii) the amount equal to (A) the absolute value of the total Specified Liabilities at the Closing Date as reflected on the Adjusted Balance Sheets (collectively, the “Specified Liabilities at Closing”) minus (B) the Specified Liabilities Adjustment Amount, is a number greater than $1,875,849, then an amount of Escrow Shares equal to the sum of the excess amount, if any, determined in accordance with clause (i) above plus the excess amount, if any, determined in accordance with clause (ii) above (collectively, the “Excess Liabilities Liabilities”) shall be paid returned to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing DateEscrow Agreement. Following delivery by Parent to the Shareholder Stockholder Representative of the Adjusted Balance SheetSheets, Parent shall give the Shareholder Stockholder Representative reasonable access during Parent's ’s regular Illinois business hours to those books and records of the Company Surviving Corporation in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet Sheets for purposes of resolving any disputes concerning the Adjusted Balance Sheet Sheets and the calculation of any Excess Net Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableat Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NMS Communications Corp)
Adjustment to Consideration. (a) Within 60 45 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared and delivered to the Stockholder Representative an unaudited balance sheet of the Surviving Corporation as of the Closing Date (the “Adjusted Balance Sheet”). If Parent elects to prepare the The Adjusted Balance Sheet, such document shall Sheet will be prepared in accordance with GAAP consistently applied on a basis consistent with the most recent regularly prepared financial statements Financials. In the event that, pursuant to the terms of the Company. If there are any Excess Liabilitiesthis Section 7.6(a), then it is determined that the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding cash and cash equivalents) at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue and the amount of any indebtedness for borrowed money) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal to such difference (“Excess Liabilities Liabilities”) shall be paid to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 7.4(e) hereof. If there are Excess AssetsFor purposes of this calculation, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved Third Party Expenses shall not be considered as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion part of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Datetotal current liabilities. Following delivery by Parent to the Shareholder Stockholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Stockholder Representative reasonable access during Parent's ’s regular Illinois California business hours to those books and records of the Company Surviving Corporation in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicableNet Assets at Closing.
Appears in 1 contract
