Cash Adjustments. (a) Subject to Section 3.5(c), prior to the Final Separation Date, either (i) Healthcare will transfer funds to Tyco or (ii) Tyco will transfer funds to Healthcare, such that Healthcare’s cash balance in its accounts immediately prior to the Final Separation Date shall equal at least $500 million (the “Healthcare Target Cash Balance”). (b) Subject to Section 3.5(c), prior to the Final Separation Date, either (i) Electronics will transfer funds to Tyco or (ii) Tyco will transfer funds to Electronics, such that Electronics’ cash balance in its accounts immediately prior to the Final Separation Date shall equal at least $500 million (the “Electronics Target Cash Balance”). (c) Notwithstanding Sections 3.5(a) and (b), if on the Business Day prior to the Final Separation Date, Tyco’s cash balance in its accounts is less than $700 million (net of accrued but unpaid Separation Expenses to be borne by Tyco pursuant to Section 12.5), then each of the Electronics Target Cash Balance and Healthcare Target Cash Balance will be reduced by an amount equal to 50% of the amount by which Tyco’s cash balance is below $700 million (net of accrued but unpaid Separation Expenses to be borne by Tyco pursuant to Section 12.5). In the event that the actual book cash balance of the Parties on the Final Separation Date is greater than the sum of the Healthcare Target Cash Balance, Electronics Target Cash Balance and the Tyco Target Cash Balance, as calculated above, such excess cash will be allocated to the Parties on the basis of each Parties’ respective contribution to the Free Cash Flow generated in the year. (d) Promptly following the Final Separation Date, and in any event not later than forty-five (45) days following such Distribution Date, Healthcare, and Electronics (each, a “Delivering Party”) shall each prepare for the period after September 30, 2006 up to its respective Distribution Date an exhibit (a “Statement of Cash Flow Detail”) which includes: (a) a complete cash flow statement indicating the Free Cash Flow generated by the Delivering Party during such period, (b) a list of acquisitions and divestitures consummated by the Delivering Party (or a member of its respective Group) which quantifies the cash impact to the Delivering Party of such transactions, (c) a list of accrued but unpaid Separation Expenses and (d) the book cash balance of such Delivering Party as of the Distribution Date. In preparing the Statement of Cash Flow Detail, the elements thereof shall (i) be prepared in accordance with GAAP applied on a consistent basis and with the same accounting principles, practices, methodologies and policies used by such Party in connection with the preparation of the Delivering Party’s financial statements, (ii) be prepared in a manner consistent with the principles set forth in Schedule 3.5, and (iii) be prepared in a manner consistent with the terms of this Agreement. (e) Within two (2) Business Days following the completion of a Delivering Party’s Statement of Cash Flow Detail, the Delivering Party shall deliver such Statement of Cash Flow Detail to Tyco for review, and Tyco and Tyco’s accountants shall be entitled to make reasonable inquiries of the Delivering Party and/or its accountants and senior officers, at reasonable times, upon reasonable advance notice, and without unreasonable interference to such Party’s operations, regarding the Delivering Party’s Statement of Cash Flow Detail. As to each Delivering Party, Tyco shall complete its review of such Statement of Cash Flow Detail within thirty (30) days of delivery of such Delivering Party’s Statement of Cash Flow Detail (the “Cash Flow Detail Review Period”). Promptly following completion of its review (but in no event later than two (2) Business Days following the conclusion of the Cash Flow Detail Review Period), Tyco shall submit to the Delivering Party a letter stating its concurrence or disagreement with the accuracy of such Party’s Statement of Cash Flow Detail (“Response Letter”), provided, that if Tyco submits a Response Letter indicating its disagreement with the Statement of Cash Flow Detail, such letter will specify the specific items on the Statement of Cash Flow Detail with which it disagrees (each, a “Disputed Item”), it being understood that all other items in such Statement of Cash Flow Detail other than the Disputed Items shall be deemed agreed to by Tyco. Unless Tyco delivers a Response Letter within two (2) Business Days following the conclusion of the Cash Flow Detail Review Period, Tyco shall be deemed to have accepted the Delivering Party’s Statement of Cash Flow Detail and the calculations therein shall become final and binding upon Tyco and such Delivering Party. (f) Following delivery of the Response Letter, Tyco and the Delivering Party shall in good faith attempt promptly to resolve all disagreement as to the computation of all Disputed Items within the fifteen (15) day period (or longer, as mutually agreed by Tyco and the Delivering Party) after delivery of the Response Letter. Following such 15-day period, either Tyco and the Delivering Party may submit any remaining Disputed Items (and only such remaining Disputed Items) to KPMG (the “Accountant”) for determination. The determination of the Accountant with respect to all remaining Disputed Items shall be completed within thirty (30) days after the appointment of the Accountant, shall be determined in accordance with this Agreement, and shall be final and binding upon Tyco and the Delivering Party. With respect to each Disputed Item subject to resolution by the Accountant, the Accountant shall adopt a position that is either equal to the Delivering Party’s proposed position, equal to Tyco’s proposed position, or between the positions proposed by the Delivering Party and Tyco. The fees, costs and expenses of the Accountant shall be shared equally by (i) Tyco and Healthcare, with respect to the determination of the Healthcare Cash Allocation and (ii) Tyco and Electronics, with respect to the determination of the Electronics Cash Allocation. (g) Within seven (7) days of the final resolution of all Disputed Items as to Healthcare and Electronics in accordance with Section 3.5(e) and (f) above, Tyco will submit to Electronics and Healthcare, a statement substantially similar to Schedule 3.5 (the “Statement of Cash Allocation”) indicating the final allocation of cash to each Party based on each Party’s contribution to Free Cash Flow (as finally determined in accordance with this Section 3.5). The cash allocation of Healthcare as set forth in the Statement of Cash Allocation shall be referred to as “Healthcare Cash Allocation”. The Cash Allocation of Electronics as set forth in the Statement of Cash Allocation shall be referred to as “Electronics Cash Allocation”.
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Samples: Separation and Distribution Agreement (Covidien Ltd.), Separation and Distribution Agreement (Tyco Electronics Ltd.)
Cash Adjustments. (a) Subject to Section 3.5(c), Goldcorp shall prior to the Final Separation DateClosing Time deliver to Kinross a statement setting out the cash balance as at September 30, either 2007 for (i) Healthcare will transfer funds to Tyco or MDO and its Subsidiaries (the “MDO Cash Balance”); (ii) Tyco will transfer funds to Healthcare, such that Healthcare’s cash balance in its accounts immediately prior to the Final Separation Date shall equal at least $500 million Porcupine Joint Venture (the “Healthcare Target Porcupine Cash Balance”); and (iii) the Xxxxxxxxxxx Joint Venture (the “Xxxxxxxxxxx Cash Balance”).
(b) Subject With respect to Section 3.5(c)the MDO Cash Balance, prior to the Final Separation Closing Date, either (i) Electronics will transfer funds the Parties shall cause the amount of the MDO Cash Balance to Tyco or (ii) Tyco will transfer funds be distributed to ElectronicsMacaines and Goldcorp Cayman, on an equal basis in accordance with their respective 50% interests. Goldcorp Cayman shall in turn distribute such that Electronics’ cash balance in its accounts immediately amount, net of applicable Taxes, to Goldcorp Barbados prior to Closing (such distribution together with the Final Separation Date shall equal at least $500 million (payment by MDO, above, the “Electronics Target Cash BalancePermitted Distribution”).
(c) Notwithstanding Sections 3.5(a) and (b), if on the Business Day prior With respect to the Final Separation Date, Tyco’s cash balance in its accounts is less than $700 million (net of accrued but unpaid Separation Expenses to be borne by Tyco pursuant to Section 12.5), then each of the Electronics Target Porcupine Cash Balance and Healthcare Target the Xxxxxxxxxxx Cash Balance will respectively, the Cash Amount shall be reduced increased (or, if such figure is negative, decreased) on the Closing Date by an amount equal to 50% of the amount by which Tyco’s cash balance is below $700 million (net of accrued but unpaid Separation Expenses to be borne by Tyco pursuant to Section 12.5). In the event that the actual book cash balance of the Parties on the Final Separation Date is greater than i) the sum of the Healthcare Target Porcupine Cash Balance, Electronics Target Cash Balance and ; (ii) the Tyco Target Musselwhite Cash Balance; (iii) amounts paid by Kinross during the Interim Period as cash calls to either of the Porcupine Joint Venture or the Xxxxxxxxxxx Joint Venture, respectively; minus (iv) the Bullion Value for the Interim Period, as calculated above, such excess cash will be allocated to the Parties on the basis of each Parties’ respective contribution to the Free Cash Flow generated reflected in the yearJV Books and Records.
(d) Promptly following On or prior to five (5) Business Days before the Final Separation Closing Date, Goldcorp may notify Kinross of its intent to cause Goldcorp Cayman, MDO, or any Subsidiary of MDO to declare and in any event pay a dividend prior to the Closing Time that would not later than forty-five otherwise be a Permitted Distribution (45) days following such Distribution Date, Healthcare, and Electronics (each, a an “Delivering PartyAdditional Dividend”) shall each prepare for in an amount not exceeding the period after September 30, 2006 up amount reasonably necessary to its respective Distribution Date an exhibit (a “Statement ensure that the estimated cash of Cash Flow Detail”) which includes: (a) a complete cash flow statement indicating the Free Cash Flow generated by the Delivering Party during such period, (b) a list of acquisitions and divestitures consummated by the Delivering Party (or a member of its respective Group) which quantifies the cash impact to the Delivering Party of such transactions, (c) a list of accrued but unpaid Separation Expenses and (d) the book cash balance of such Delivering Party dividend payer as of the Distribution Date. In preparing the Statement of Cash Flow Detail, the elements thereof shall (i) be prepared in accordance with GAAP applied on a consistent basis and with the same accounting principles, practices, methodologies and policies used by such Party in connection with the preparation Closing Time does not exceed 10% of the Delivering Party’s financial statements, (iiestimated gross fair market value of the assets of the dividend payer as of the Closing Time. The notification by Goldcorp shall include the amount of the proposed Additional Dividend and its estimate of the cash and gross fair market value of the assets of the dividend payer as of the Closing Time. Kinross will cause its Subsidiaries to vote in favour of the Additional Dividend. Goldcorp and Kinross agree that the Cash Amount to be paid by Goldcorp to Kinross under Section 2.3(a) shall be prepared increased by the amount necessary to ensure that Kinross and its Subsidiaries are not in a manner consistent with the principles set forth in Schedule 3.5, and (iii) be prepared in a manner consistent with the terms of this Agreement.
(e) Within two (2) Business Days following the completion of a Delivering Party’s Statement of Cash Flow Detail, the Delivering Party shall deliver such Statement of Cash Flow Detail to Tyco for review, and Tyco and Tyco’s accountants shall be entitled to make reasonable inquiries of the Delivering Party and/or its accountants and senior officers, at reasonable times, upon reasonable advance notice, and without unreasonable interference to such Party’s operations, regarding the Delivering Party’s Statement of Cash Flow Detail. As to each Delivering Party, Tyco shall complete its review of such Statement of Cash Flow Detail within thirty (30) days of delivery of such Delivering Party’s Statement of Cash Flow Detail (the “Cash Flow Detail Review Period”). Promptly following completion of its review (but in no event later than two (2) Business Days following the conclusion of the Cash Flow Detail Review Period), Tyco shall submit to the Delivering Party a letter stating its concurrence or disagreement with the accuracy of such Party’s Statement of Cash Flow Detail (“Response Letter”), provided, that if Tyco submits a Response Letter indicating its disagreement with the Statement of Cash Flow Detail, such letter will specify the specific items on the Statement of Cash Flow Detail with which it disagrees (each, a “Disputed Item”), it being understood that all other items in such Statement of Cash Flow Detail other than the Disputed Items shall be deemed agreed to by Tyco. Unless Tyco delivers a Response Letter within two (2) Business Days following the conclusion of the Cash Flow Detail Review Period, Tyco shall be deemed to have accepted the Delivering Party’s Statement of Cash Flow Detail and the calculations therein shall become final and binding upon Tyco and such Delivering Party.
(f) Following delivery of the Response Letter, Tyco and the Delivering Party shall in good faith attempt promptly to resolve all disagreement as to the computation of all Disputed Items within the fifteen (15) day period (or longer, as mutually agreed by Tyco and the Delivering Party) after delivery of the Response Letter. Following such 15-day period, either Tyco and the Delivering Party may submit any remaining Disputed Items (and only such remaining Disputed Items) to KPMG (the “Accountant”) for determination. The determination of the Accountant with respect to all remaining Disputed Items shall be completed within thirty (30) days worse economic position after the appointment payment of the Accountant, shall be determined in accordance with this Agreement, and shall be final and binding upon Tyco and the Delivering Party. With respect any dividends pursuant to each Disputed Item subject to resolution by the Accountant, the Accountant shall adopt a position that is either equal to the Delivering Party’s proposed position, equal to Tyco’s proposed position, or between the positions proposed by the Delivering Party and Tyco. The fees, costs and expenses of the Accountant shall be shared equally by (i) Tyco and Healthcare, with respect to the determination of the Healthcare Cash Allocation and (ii) Tyco and Electronics, with respect to the determination of the Electronics Cash Allocation.
(g) Within seven (7) days of the final resolution of all Disputed Items as to Healthcare and Electronics in accordance with Section 3.5(e) and (f) above, Tyco will submit to Electronics and Healthcare, a statement substantially similar to Schedule 3.5 (the “Statement of Cash Allocation”) indicating the final allocation of cash to each Party based on each Party’s contribution to Free Cash Flow (as finally determined in accordance with this Section 3.5). The cash allocation of Healthcare as set forth 2.9(d) at the Closing Time than Kinross and its Subsidiaries would have been in at the Statement of Cash Allocation shall be referred to as “Healthcare Cash Allocation”. The Cash Allocation of Electronics as set forth in the Statement of Cash Allocation shall be referred to as “Electronics Cash Allocation”Closing Time if such dividends had not been declared or paid.
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Cash Adjustments. (a) Subject to Section 3.5(c), prior to the Final Separation Date, either (i) Healthcare will transfer funds to Tyco or (ii) Tyco will transfer funds to Healthcare, such that Healthcare’s cash balance in its accounts immediately prior to the Final Separation Date shall equal at least $500 million (net of unpaid Separation Expenses approved by the Executive Vice President and Chief Financial Officer of Tyco to be borne by Healthcare pursuant to Section 12.5) (the “Healthcare Target Cash Balance”).
(b) Subject to Section 3.5(c), prior to the Final Separation Date, either (i) Electronics will transfer funds to Tyco or (ii) Tyco will transfer funds to Electronics, such that Electronics’ cash balance in its accounts immediately prior to the Final Separation Date shall equal at least $500 million (net of unpaid Separation Expenses approved by the Executive Vice President and Chief Financial Office of Tyco to be borne by Electronics pursuant to Section 12.5) (the “Electronics Target Cash Balance”).
(c) Notwithstanding Sections 3.5(a) and (b), if on the Business Day prior to the Final Separation Date, Tyco’s separation bank cash balance as reflected in its accounts Tyco’s daily liquidity report is less than $700 million (net of accrued but unpaid Separation Expenses approved the Executive Vice president and Chief Financial Officer of Tyco to be borne by Tyco pursuant to Section 12.5) after making the adjustments contemplated in Sections 3.5(a) and (b), then each of the Electronics Target Cash Balance and Healthcare Target Cash Balance will be reduced by an amount equal to 50% of the amount by which Tyco’s cash balance is below $700 million (net of accrued but unpaid Separation Expenses approved by the Executive Vice President and Chief Financial Officer of Tyco to be borne by Tyco pursuant to Section 12.5). In the event that the actual book cash balance of the Parties on the Final Separation Date is greater than the sum of the Healthcare Target Cash Balance, Electronics Target Cash Balance and the Tyco Target Cash Balance, as calculated above, such excess cash will be allocated to the Parties on the basis of each Parties’ respective contribution to the Free Cash Flow generated in the year.
(d) Promptly following the Final Separation Date, and in any event not later than forty-five (45) days following such Distribution Date, Healthcare, and Electronics (each, a “Delivering Party”) shall each prepare for the period after September 30, 2006 up to its respective Distribution Date an exhibit (a “Statement of Cash Flow Detail”) which includes: (a) a complete cash flow statement indicating the Free Cash Flow generated by the Delivering Party during such period, (b) a list of acquisitions and divestitures consummated by the Delivering Party (or a member of its respective Group) which quantifies the cash impact to the Delivering Party of such transactions, with the exception of the impact resulting of the divestiture by Electronics of its printed circuit board business (c) a list of accrued but unpaid Separation Expenses approved by the Executive Vice President and Chief Financial Officer of Tyco and (d) the book cash and cash equivalents balance along with the balance of the par value of debt of such Delivering Party as of the Distribution Date. In preparing the Statement of Cash Flow Detail, the elements thereof shall (i) be prepared in accordance with GAAP applied on a consistent basis and with the same accounting principles, practices, methodologies and policies used by such Party in connection with the preparation of the Delivering Party’s financial statements, (ii) be prepared in a manner consistent with the principles set forth in Schedule 3.5, and (iii) be prepared in a manner consistent with the terms of this Agreement.
(e) Within two (2) Business Days following the completion of a Delivering Party’s Statement of Cash Flow Detail, the Delivering Party shall deliver such Statement of Cash Flow Detail to Tyco for review, and Tyco and Tyco’s accountants shall be entitled to make reasonable inquiries of the Delivering Party and/or its accountants and senior officers, at reasonable times, upon reasonable advance notice, and without unreasonable interference to such Party’s operations, regarding the Delivering Party’s Statement of Cash Flow Detail. As to each Delivering Party, Tyco shall complete its review of such Statement of Cash Flow Detail within thirty (30) days of delivery of such Delivering Party’s Statement of Cash Flow Detail (the “Cash Flow Detail Review Period”). Promptly following completion of its review (but in no event later than two (2) Business Days following the conclusion of the Cash Flow Detail Review Period), Tyco shall submit to the Delivering Party a letter stating its concurrence or disagreement with the accuracy of such Party’s Statement of Cash Flow Detail (“Response Letter”), provided, that if Tyco submits a Response Letter indicating its disagreement with the Statement of Cash Flow Detail, such letter will specify the specific items on the Statement of Cash Flow Detail with which it disagrees (each, a “Disputed Item”), it being understood that all other items in such Statement of Cash Flow Detail other than the Disputed Items shall be deemed agreed to by Tyco. Unless Tyco delivers a Response Letter within two (2) Business Days following the conclusion of the Cash Flow Detail Review Period, Tyco shall be deemed to have accepted the Delivering Party’s Statement of Cash Flow Detail and the calculations therein shall become final and binding upon Tyco and such Delivering Party.
(f) Following delivery of the Response Letter, Tyco and the Delivering Party shall in good faith attempt promptly to resolve all disagreement as to the computation of all Disputed Items within the fifteen (15) day period (or longer, as mutually agreed by Tyco and the Delivering Party) after delivery of the Response Letter. Following such 15-day period, either Tyco and the Delivering Party may shall submit any remaining Disputed Items (and only such remaining Disputed Items) to KPMG (the “Accountant”) for determination. The determination of the Accountant with respect to all remaining Disputed Items shall be completed within thirty (30) days after the appointment of the Accountant, shall be determined in accordance with this Agreement, and shall be final and binding upon Tyco and the Delivering Party. With respect to each Disputed Item subject to resolution by the Accountant, the Accountant shall adopt a position that is either equal to the Delivering Party’s proposed position, equal to Tyco’s proposed position, or between the positions proposed by the Delivering Party and Tyco. The fees, costs and expenses of the Accountant shall be shared equally by (i) Tyco and Healthcare, with respect to the determination of the Healthcare Cash Allocation and (ii) Tyco and Electronics, with respect to the determination of the Electronics Cash Allocation.
(g) Notwithstanding the forgoing, on the fifteenth (15th) day following delivery of the Response Letter, Tyco shall deliver a preliminary statement calculated based on the example in Schedule 3.5 (the “Preliminary Statement of Cash Allocation”) setting forth a preliminary cash allocation for Healthcare based on all non-disputed items in the Healthcare Statement of Cash Flow Detail (the “Preliminary Healthcare Cash Allocation” and a preliminary cash allocation for Electronics based on all non-disputed items in the Electronics Statement of Cash Flow Detail (the “Preliminary Electronics Cash Allocation”). Based on such Preliminary Statement of Cash Allocation:
(i) If the Preliminary Healthcare Cash Allocation is greater than the Healthcare’s book cash balance as of the Healthcare Distribution Date, (the “Healthcare Distribution Cash Balance”), and such difference is greater than $10 million, then Tyco shall be obligated to pay, or cause to be paid, to Healthcare, or its designee, the amount of such excess within three (3) Business Days following delivery of the Preliminary Statement of Cash Allocation. If the Preliminary Healthcare Cash Allocation is less than the Healthcare Distribution Cash Balance, and such difference is greater than $10 million, then Healthcare shall be obligated to pay, or cause to be paid, to Tyco, or its designee, the amount of such excess within three (3) Business Days following delivery of the Preliminary Statement of Cash Allocation.
(ii) If the Preliminary Electronics Cash Allocation is greater than Electronics’ book cash balance as of the Electronics Distribution Date, (the “Electronics Distribution Cash Balance”), and such difference is greater than $10 million, then Tyco shall be obligated to pay, or cause to be paid, to Electronics, or its designee, the amount of such excess within three (3) Business Days following delivery of the Preliminary Statement of Cash Allocation. If the Preliminary Electronics Cash Allocation is less than the Electronics Distribution Cash Balance, and such difference is greater than $10 million, then Electronics shall be obligated to pay, or cause to be paid, to Tyco, or its designee, the amount of such excesswithin three (3) Business Days following delivery of the Preliminary Statement of Cash Allocation.
(h) Within seven (7) days of the final resolution of all Disputed Items as to Healthcare and Electronics in accordance with Section 3.5(e) and (f) above, Tyco will submit to Electronics and Healthcare, a statement substantially similar to calculated based on the example in Schedule 3.5 (the “Statement of Cash Allocation”) indicating the final allocation of cash to each Party based on each Party’s contribution to Free Cash Flow (as finally determined in accordance with this Section 3.5). The cash allocation of Healthcare as set forth in the Statement of Cash Allocation shall be referred to as “Healthcare Cash Allocation”. The Cash Allocation of Electronics as set forth in the Statement of Cash Allocation shall be referred to as “Electronics Cash Allocation”.. Based on such Statement of Cash Allocation:
Appears in 1 contract
Samples: Separation and Distribution Agreement (Tyco International LTD /Ber/)
