Contingent Purchase Price. Subject to the provisions of this Section 2.7, Buyer shall pay Seller a cash amount equal to (a) the amount by which the Company 2012 EBITDA exceeds Seven Million Dollars ($7,000,000); provided that in no event shall the maximum amount payable by Buyer to Seller pursuant to this Section 2.7 exceed Two Million Dollars ($2,000,000) (such amount, as finally determined pursuant to this Section 2.7, being the “Contingent Price”). The Contingent Price shall be determined and paid in accordance with the following provisions of this Section 2.7: (a) The Company shall prepare the Company’s financial statements for the 2012 fiscal year ended December 31, 2012 (at the conclusion of such period consistent with past practice of the Company) in accordance with GAAP and Section 2.7(a) of the Disclosure Schedule. The Company shall have the Company’s 2012 financial statements audited by a certified public accounting firm selected by the Company. The Company shall use commercially reasonable efforts to have such audit completed and the resulting audit report delivered no later than April 30, 2013, and in any event, the Company shall cause such audit to be completed and the resulting audit report delivered no later than September 30, 2013. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements of the Company (the “Company 2012 Financial Statements”) and in any event no later than September 30, 2013, the Company shall deliver a copy of the Company 2012 Financial Statements to Buyer and Seller together with written notice, based on such financial statements, of the Company 2000 XXXXXX and calculation of the Contingent Price (such financial statements and written notice being the “Contingent Price Notice”). (b) Buyer and Seller shall have forty-five (45) days from the date of receipt of the Contingent Price Notice (the “Contingent Price Review Period”) to review the Company 2012 Financial Statements and the Company’s calculations of the Company 2012 EBITDA and the Contingent Price. During the Contingent Price Review Period, the Company shall provide Buyer, Seller and their Representatives with reasonable access to the relevant books and records of the Company (including work papers prepared by the Company’s in-house and outside accountants) relating to the preparation of the Company 2012 Financial Statements and to the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and shall be in a manner that does not unreasonably interfere with the normal business operations of the Company. (c) On or prior to the last day of the Contingent Price Review Period, Buyer or Seller (or both) may object to the Company’s determination of the Company 2012 EBITDA and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties a written statement setting forth such Party’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s disagreement therewith (each, a “Statement of Contingent Price Objections”). To the extent Buyer and Seller each fails to deliver a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice shall be deemed to have been accepted by Buyer and Seller. If either Buyer or Seller (or both) delivers a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, Buyer and Seller shall negotiate in good faith to resolve the objections stated therein within thirty (30) days after the date of delivery to the Parties of any Statement of Contingent Price Objections (the “Contingent Price Resolution Period”), and, if the same are so resolved within the Contingent Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are agreed to in writing by Buyer and Seller, shall be final and binding on the Parties. (d) If Seller and Buyer fail within the Contingent Price Resolution Period to reach an agreement with respect to all of the objections set forth in any Statement of Contingent Price Objections, then the objections of Buyer or Seller (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price Objections”) shall be submitted for resolution to the Independent Accountants who, acting as experts and not arbitrators, shall resolve the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) and, based on such resolution, shall make applicable adjustments to the determination of the Company 2012 EBITDA and the related determination of the Contingent Price. Each of Seller and Buyer shall pay fifty percent (50%) of the fees and expenses of the Independent Accountants engaged for the purposes of this Section 2.7(d). (e) Seller and Buyer shall use commercially reasonable efforts to cause the Independent Accountants to make a written determination with respect to the Outstanding Contingent Price Objections and any corresponding adjustments to the Company’s determination of the Company 2012 EBITDA and the related determination of the Contingent Price as soon as practicable, and in any event within thirty (30) days, after their engagement. The Independent Accountants’ resolution of the Outstanding Contingent Price Objections and related adjustments (if any) to the Company 2012 EBITDA and the related determination of the Contingent Price shall be final, conclusive and binding upon the Parties. (f) Buyer covenants and agrees that, following the Closing Date and throughout the 2012 calendar year, Buyer shall cause the Company to, (i) maintain separate financial statements for the Business such that the Company 2012 EBITDA can be prepared as set forth herein and (ii) use commercially reasonable efforts to maintain the Business. (g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, the full Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; provided, however that the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000), and (ii) Two Million Dollars ($2,000,000). Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Price shall be payable by Buyer to Seller.
Appears in 1 contract
Contingent Purchase Price. Subject to the provisions of this Section 2.7, Buyer shall pay Seller a cash amount equal to (a) the amount by which the Company 2012 EBITDA exceeds Seven Million Dollars ($7,000,000); provided that in no event shall the maximum amount payable by Buyer to Seller pursuant to this Section 2.7 exceed Two Million Dollars ($2,000,000) (such amount, as finally determined pursuant to this Section 2.7, being the “Contingent Price”). The Contingent Price shall be determined and paid in accordance with the following provisions of this Section 2.7:
(a) The Company shall prepare believes its irreversible electroporation technology may have application for use in Cardiovascular Products. In the event the Company, the Purchaser, or an Affiliate of the Purchaser obtains one or more Cardiovascular Patents and proceeds to develop, market, and sell (or license third parties to sell) Cardiovascular Products, Purchaser will pay to the Sellers, in the aggregate, as part of the Purchase Price, an additional amount (the “Contingent Purchase Price”) equal to 3% of the Net Sales of Cardiovascular Products covered by the claims of a Cardiovascular Patent.
(b) Nothing in this Agreement shall impose upon Purchaser or the Company any obligation to (i) develop Cardiovascular Products following the Closing in the event Purchaser determines that development of Cardiovascular Products is not economically or technologically feasible or (ii) sell Cardiovascular Products, once developed, if Purchaser determines that Cardiovascular Products no longer are economically or technologically viable. In such event, Purchaser and the Company shall be free to discontinue further development or marketing efforts, and no Contingent Purchase Price shall be owed.
(c) Subject to the foregoing, payment of any Contingent Purchase Price that becomes due shall commence upon the first commercial sale of a Cardiovascular Product that is covered by the claims of a Cardiovascular Patent and shall continue until the last to expire of the Cardiovascular Patents. Contingent Purchase Price shall be paid within 60 days of the end of each March, June, September, and December and shall be accompanied by a report showing for such period (i) the number of Cardiovascular Products sold, (ii) the Net Sales received by the Company from such sales, and (iii) the total Contingent Purchase Price payable. Payment of each installment of Contingent Purchase Price shall be made to the Shareholder Representative who shall be responsible for remitting to each Seller the Seller’s financial statements for the 2012 fiscal year ended December 31, 2012 (at the conclusion pro rata share of such period consistent with past practice installment. Payment of Contingent Purchase Price by Purchaser to the Shareholder Representative shall discharge Purchaser’s obligations hereunder as to each Seller.
(d) The Purchaser and the Company shall keep, or cause to be kept, accurate records of the Company) in accordance with GAAP and Section 2.7(a) of the Disclosure Schedule. The Company shall have the Company’s 2012 financial statements audited by a certified public accounting firm selected Net Sales made by the Company. The Company shall use commercially Shareholder Representative and his duly authorized agents may, at all reasonable efforts to have such audit completed and times, examine the resulting audit report delivered no later than April 30, 2013, and in any event, the Company shall cause such audit to be completed and the resulting audit report delivered no later than September 30, 2013. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements of the Company (the “Company 2012 Financial Statements”) and in any event no later than September 30, 2013, the Company shall deliver a copy of the Company 2012 Financial Statements to Buyer and Seller together with written notice, based on such financial statements, of the Company 2000 XXXXXX and calculation of the Contingent Price (such financial statements and written notice being the “Contingent Price Notice”).
(b) Buyer and Seller shall have forty-five (45) days from the date of receipt of the Contingent Price Notice (the “Contingent Price Review Period”) to review the Company 2012 Financial Statements and the Company’s calculations of the Company 2012 EBITDA and the Contingent Price. During the Contingent Price Review Period, the Company shall provide Buyer, Seller and their Representatives with reasonable access to the relevant books and pertinent records of the Company (including work papers prepared by the Company’s in-house Purchaser and outside accountants) relating to the preparation of the Company 2012 Financial Statements and in order to verify the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and shall be in a manner that does not unreasonably interfere with the normal business operations of Net Sales made by the Company.
(ce) On The Purchaser agrees that it will not, and will not permit the Company to, sell or prior license (a) the rights to a Cardiovascular Patent, or (b) the last day right to sell Cardiovascular Products covered by a Cardiovascular Patent, unless (i) in the case of a sale, the acquiring party assumes the obligation to pay the Contingent Purchase Price Review Period, Buyer or Seller (or both) may object to in accordance with the Company’s determination of the Company 2012 EBITDA and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties a written statement setting forth such Party’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s disagreement therewith (each, a “Statement of Contingent Price Objections”). To the extent Buyer and Seller each fails to deliver a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice shall be deemed to have been accepted by Buyer and Seller. If either Buyer or Seller (or both) delivers a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, Buyer and Seller shall negotiate in good faith to resolve the objections stated therein within thirty (30) days after the date of delivery to the Parties of any Statement of Contingent Price Objections (the “Contingent Price Resolution Period”), and, if the same are so resolved within the Contingent Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are agreed to in writing by Buyer and Seller, shall be final and binding on the Parties.
(d) If Seller and Buyer fail within the Contingent Price Resolution Period to reach an agreement with respect to all of the objections set forth in any Statement of Contingent Price Objections, then the objections of Buyer or Seller (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price Objections”) shall be submitted for resolution to the Independent Accountants who, acting as experts and not arbitrators, shall resolve the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) and, based on such resolution, shall make applicable adjustments to the determination of the Company 2012 EBITDA and the related determination of the Contingent Price. Each of Seller and Buyer shall pay fifty percent (50%) of the fees and expenses of the Independent Accountants engaged for the purposes terms of this Section 2.7(d).
1.6, and agrees to provide the Shareholder Representative an opportunity to inspect its books and records in order to verify the Net Sales of Cardiovascular Products, and (eii) Seller and Buyer in the case of a license, the licensee agrees to provide the Purchaser or the Company an opportunity to inspect its records in order to verify the Net Sales of Cardiovascular Products, the results of which shall use commercially reasonable efforts to cause the Independent Accountants to make a written determination with respect be furnished to the Outstanding Contingent Price Objections and any corresponding adjustments to the Company’s determination of the Company 2012 EBITDA and the related determination of the Contingent Price as soon as practicable, and in any event within thirty (30) days, after their engagement. The Independent Accountants’ resolution of the Outstanding Contingent Price Objections and related adjustments (if any) to the Company 2012 EBITDA and the related determination of the Contingent Price shall be final, conclusive and binding upon the PartiesShareholder Representative.
(f) Buyer covenants From and agrees thatafter the Closing, following the Closing Date and throughout the 2012 calendar year, Buyer Purchaser shall cause the Company to, (i) maintain separate financial statements for to diligently and in good faith prosecute the Business such that Cardiovascular Patent applications filed by the Company 2012 EBITDA can be prepared with the U.S. Patent Office as set forth herein and (ii) use commercially reasonable efforts to maintain the Business.
(g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, the full Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; this Agreement, provided, however however, that Purchaser shall not be obligated to continue to pursue claims included in a pending application once they have been twice rejected or finally rejected (whichever occurs earlier) by the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000), and (ii) Two Million Dollars ($2,000,000). Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Price shall be payable by Buyer to SellerU.S. Patent Office.
Appears in 1 contract
Contingent Purchase Price. Subject Platform Holdco shall, and XXXX shall cause Platform Holdco to, pay to the provisions of this Section 2.7, Buyer shall pay Seller a cash Retaining Holders Representative an amount equal up to (a) the amount by which the Company 2012 EBITDA exceeds Seven One Hundred Million Dollars ($7,000,000100,000,000.00); , in cash or, provided that such shares are then listed on the New York Stock Exchange or equivalent public trading market, XXXX Ordinary Shares in no event shall the maximum amount payable sole discretion of XXXX, when and as determined by Buyer to Seller pursuant to this Section 2.7 exceed Two Million Dollars 3.3 ($2,000,000) (such amountas so determined, as finally determined pursuant to this Section 2.7, being the “Contingent Purchase Price”). The determination of the amount of the Contingent Purchase Price payable, if any, shall be contingent on the performance of the consolidated operations of the Company and its Subsidiaries for the seven (7) year period commencing on the Closing Date (“Contingent Purchase Price Term”). The amount of the Contingent Purchase Price shall be determined and paid in accordance with Appendix II. To the following provisions extent any portion of this Section 2.7:
(a) The Company shall prepare the Company’s financial statements for Contingent Purchase Price is paid in equity securities of XXXX and any equity securities of XXXX are then publicly traded, XXXX agrees to file a resale registration statement under the 2012 fiscal year ended December 31, 2012 (at Securities Act registering the conclusion sale of such equity securities by the recipients thereof as promptly as practicable following issuance thereof and shall keep such registration statement effective until all securities registered thereunder have been sold or may be sold without the effectiveness of such registration statement (whichever is earlier); provided that, notwithstanding the foregoing, XXXX may suspend the effectiveness of such registration statement and the use of any prospectus (or prospectus supplement) included therein in the event, and for such period consistent with past practice of time as (1) such a suspension is required by the rules and regulations of the CompanySEC as applied to XXXX, (2) such prospectus supplement ceases to meet the requirements of Section 10 of the Securities Act or (3) in accordance with GAAP the good faith determination by XXXX’x board of directors, offers and Section 2.7(a) sales pursuant to such registration statement should not be made by reason of the Disclosure Scheduleexistence of material undisclosed circumstances or developments with respect to which the disclosure that would be required in such registration statement would be premature and would have an adverse effect on XXXX. The Company shall have For purposes of calculating the Company’s 2012 financial statements audited by a certified public accounting firm selected by value of each equity security of XXXX used to pay any portion of the Company. The Company shall use commercially reasonable efforts to have such audit completed and the resulting audit report delivered no later than April 30, 2013, and in any eventContingent Purchase Price, the Company value shall cause such audit be equal to be completed and the resulting audit report delivered no later than September 30, 2013XXXX Value Per Share as of the date of payment of the Contingent Purchase Price. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements 60 days of the Company (expiration of the “Company 2012 Financial Statements”) and in any event no later than September 30Contingent Purchase Price Term, 2013, the Company XXXX shall deliver to the Retaining Holders Representative a copy of the Company 2012 Financial Statements to Buyer and Seller together with written notice, based on such financial statements, of the Company 2000 XXXXXX and statement setting forth a reasonably detailed calculation of the Contingent Price (such financial statements and written notice being the “Contingent Price Notice”).
(b) Buyer and Seller shall have forty-five (45) days from the date of receipt of the Contingent Price Notice Purchase Price, if any (the “Contingent Purchase Price Statement”). The Retaining Holders Representative shall have 60 days to review and object to the Contingent Purchase Price Statement (“Contingent Purchase Price Review Period”) ). If the Retaining Holders Representative objects to review the Company 2012 Financial Statements and the Company’s calculations of the Company 2012 EBITDA and the Contingent Price. During the Contingent Purchase Price Review PeriodStatement, the Company it shall provide Buyer, Seller and their Representatives with reasonable access deliver to the relevant books and records of the Company (including work papers prepared by the Company’s in-house and outside accountants) relating to the preparation of the Company 2012 Financial Statements and to the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and shall be in a manner that does not unreasonably interfere with the normal business operations of the Company.
(c) On or prior to the last day of the Contingent Price Review Period, Buyer or Seller (or both) may object to the Company’s determination of the Company 2012 EBITDA and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties XXXX a written statement setting forth such Partythe Retaining Holders Representative’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s its disagreement therewith (each, a “Statement of Contingent Purchase Price ObjectionsObjection”). To If the extent Buyer and Seller each Retaining Holders Representative fails to deliver a Statement of Contingent Purchase Price Objections Objection before the expiration of the Contingent Purchase Price Review Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Purchase Price contained reflected in the Contingent Purchase Price Notice Statement shall be deemed to have been accepted by Buyer and Sellerthe Retaining Holders Representative. If either Buyer or Seller (or both) the Retaining Holders Representative delivers a Statement of Contingent Purchase Price Objections Objection before the expiration of the Contingent Purchase Price Review Period, Buyer XXXX and Seller the Retaining Holders Representative shall negotiate in good faith to resolve the such objections stated therein within thirty (30) 30 days after the date delivery of delivery to the Parties of any Statement of Contingent Purchase Price Objections (the “Contingent Price Resolution Period”)Objection, and, if the same are so resolved within such 30 day period, the Contingent Purchase Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are may have been previously agreed to in writing by Buyer XXXX and Sellerthe Retaining Holders Representative, shall be final and binding on binding. On the Parties.
(d) If Seller other hand, if XXXX and Buyer fail within the Contingent Price Resolution Period Retaining Holders Representative are unable to reach an agreement with respect to all of the objections matters set forth in any Statement the Contingent Purchase Price Objection within the 30 day period following the end of the Contingent Purchase Price ObjectionsReview Period, then the objections of Buyer or Seller any amounts remaining in dispute (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price ObjectionsCPP Disputed Amounts”) shall be submitted for resolution to the Contingent Purchase Price Independent Accountants Accountants, who, acting as experts and not arbitrators, shall resolve the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) and, based on such resolution, shall CPP Disputed Amounts only and make applicable any adjustments to the determination of Contingent Purchase Price, as the Company 2012 EBITDA case may be, and the related determination Contingent Purchase Price Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Contingent Purchase Price Independent Accountants shall only decide the specific items under dispute by the parties and their decision for each CPP Disputed Amount must be within the range of values assigned to each such item in the Contingent PricePurchase Price Statement and the Contingent Purchase Price Objection, respectively. Each of Seller and Buyer The Retaining Holders Representative shall pay fifty percent (50%) a portion of the fees and expenses of the Contingent Purchase Price Independent Accountants engaged for equal to 100% multiplied by a fraction, the purposes numerator of this Section 2.7(d).
(e) Seller and Buyer shall use commercially reasonable efforts which is the amount of any disputed amounts submitted to cause the Contingent Purchase Price Independent Accountants to make a written that are resolved in favor of XXXX (that being the difference between the Contingent Purchase Price Independent Accountants’ determination with respect and the Retaining Holders Representative’s determination) and the denominator of which is the total amount of disputed amounts submitted to the Outstanding Contingent Purchase Price Objections Independent Accountants (that being the sum total by which XXXX’X determination and any corresponding adjustments to the CompanyRetaining Holders Representative’s determination of differ from the Company 2012 EBITDA and the related determination of the Contingent Purchase Price as soon as practicable, and in any event within thirty (30) days, after their engagement. The Independent Accountants’ resolution ). XXXX shall pay that portion of the Outstanding Contingent Price Objections fees and related adjustments (if any) to the Company 2012 EBITDA and the related determination expenses of the Contingent Purchase Price shall be final, conclusive and binding upon the Parties.
(f) Buyer covenants and agrees that, following the Closing Date and throughout the 2012 calendar year, Buyer shall cause the Company to, (i) maintain separate financial statements for the Business such Independent Accountants that the Company 2012 EBITDA can be prepared as set forth herein and (ii) use commercially reasonable efforts Retaining Holders Representative is not required to maintain the Businesspay hereunder.
(g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, the full Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; provided, however that the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000), and (ii) Two Million Dollars ($2,000,000). Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Price shall be payable by Buyer to Seller.
Appears in 1 contract
Samples: Business Combination Agreement (Platform Specialty Products Corp)
Contingent Purchase Price. Subject to (i) The Contingent Purchase Price shall consist of the provisions of this Section 2.7"Stock Contingent Purchase Price" and the "Cash Contingent Purchase Price", Buyer shall pay Seller a cash amount equal to (a) the amount by which the Company 2012 EBITDA exceeds Seven Million Dollars ($7,000,000); provided that each as defined in no event shall the maximum amount payable by Buyer to Seller pursuant to this Section 2.7 exceed Two Million Dollars ($2,000,000) (such amount, as finally determined pursuant to this Section 2.7, being the “Contingent Price”ANNEX 1.3(c). The Contingent Price Purchase Price, if any, shall be determined and paid in accordance with the following provisions of this Section 2.7:
(a) The Company shall prepare the Company’s financial statements for the 2012 fiscal year ended December 31, 2012 (at the conclusion of such period consistent with past practice of the Company) in accordance with GAAP and Section 2.7(a) of the Disclosure Schedule. The Company shall have the Company’s 2012 financial statements audited by a certified public accounting firm selected by the Company. The Company shall use commercially reasonable efforts to have such audit completed and the resulting audit report delivered no later than April 30, 2013, and in any event, the Company shall cause such audit to be completed and the resulting audit report delivered no later than September 30, 2013. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements of the Company (the “Company 2012 Financial Statements”) and in any event no later than September 30, 2013, the Company shall deliver a copy of the Company 2012 Financial Statements to Buyer and Seller together with written noticepayable quarterly, based on such the achievement of certain financial statements, of the Company 2000 XXXXXX and calculation of the Contingent Price (such financial statements and written notice being the “Contingent Price Notice”milestones as set forth in ANNEX 1.3(c).
(bii) Buyer During the period commencing on September 1, 2000 and ending on August 31, 2002 (the "Earn Out Period"), the Purchaser shall deliver within 45 days of the end of each fiscal quarter, a report setting forth the amount, if any, of the Contingent Purchase Price payable pursuant to subparagraph (i) above, which report shall set forth the calculations upon which such determination has been based. The report shall be subject to the Seller's review. In reviewing such reports, the Seller shall have forty-five (45) days from the date of receipt of right to communicate with the Contingent Price Notice (persons who prepared such reports, and, to the “Contingent Price Review Period”) extent relevant, to review the Company 2012 Financial Statements work papers, schedules, memoranda and the Company’s calculations of the Company 2012 EBITDA and the Contingent Price. During the Contingent Price Review Period, the Company shall provide Buyer, Seller and their Representatives with reasonable access to the relevant books and records of the Company (including work papers prepared by the Company’s in-house and outside accountants) relating to other documents used or reviewed in the preparation of such reports. The Seller shall have thirty (30) business days after receipt of such report to notify the Company 2012 Financial Statements Purchaser of its acceptance or rejection thereof, and to if the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and shall be in a manner that does not unreasonably interfere with the normal business operations of the Company.
(c) On or prior to the last day of the Contingent Price Review Period, Buyer or Seller (or both) may object to the Company’s determination of the Company 2012 EBITDA and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties a written statement setting forth such Party’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s disagreement therewith (each, a “Statement of Contingent Price Objections”). To the extent Buyer and Seller each fails to deliver a Statement of Contingent Price Objections before so notify the expiration of the Contingent Price Review PeriodPurchaser, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice Seller shall be deemed to have been accepted by Buyer such determination. Any rejection of the report shall be in writing and Sellershall specify in reasonable detail the basis for such objection. If either Buyer or the Seller (or both) delivers a Statement of Contingent Price Objections before rejects the expiration of report, the Contingent Price Review Period, Buyer Purchaser and the Seller shall negotiate submit such items in good faith to resolve the objections stated therein within thirty (30) days after the date of delivery to the Parties of any Statement of Contingent Price Objections (the “Contingent Price Resolution Period”), and, if the same are so resolved within the Contingent Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are agreed to in writing by Buyer and Seller, shall be final and binding on the Parties.
(d) If Seller and Buyer fail within the Contingent Price Resolution Period to reach an agreement with respect to all of the objections set forth in any Statement of Contingent Price Objections, then the objections of Buyer or Seller (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price Objections”) shall be submitted dispute for resolution to the Independent Accountants whoDesignated Accounting Firm, acting as experts and not arbitrators, which shall resolve such items in dispute for resolution with a 15 day determination period following submission of such items in dispute to the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) Designated Accounting Firm, and, based on upon such resolution, render a report to Seller and Purchaser upon such disputed matters. Such determination by the Designated Accounting Firm, when made, shall make applicable adjustments be (x) within the range of proposals established for such dispute by Purchaser and Seller and (y) deemed to be an agreement between the parties hereto with respect to the determination of issues in dispute, and shall be binding on the Company 2012 EBITDA Purchaser and the related determination of the Contingent PriceSeller with respect to such issues. Each of Seller and Buyer shall pay fifty percent (50%) of the The fees and expenses of the Independent Accountants engaged for the purposes Designated Accounting Firm incurred in connection with a resolution of a dispute pursuant to this Section 2.7(d)1.02(c)(ii) shall be borne equally by the Purchaser and the Seller.
(eiii) Seller and Buyer shall use commercially reasonable efforts to cause the Independent Accountants to make a written determination with respect to the Outstanding Contingent Price Objections and any corresponding adjustments to the Company’s determination of the Company 2012 EBITDA and the related determination Each payment of the Contingent Purchase Price as soon as practicableshall be paid within five (5) business days after the report is accepted by the Seller, and in any event or if the report is rejected, within thirty five (305) daysbusiness days after the final determination thereof (provided, after their engagement. The Independent Accountants’ resolution of the Outstanding Contingent Price Objections and related adjustments (if any) to the Company 2012 EBITDA and the related determination that Purchaser shall pay that portion of the Contingent Purchase Price shall be final, conclusive and binding upon the Parties.
which is not disputed within five (f5) Buyer covenants and agrees that, following the Closing Date and throughout the 2012 calendar year, Buyer shall cause the Company to, (i) maintain separate financial statements for the Business such that the Company 2012 EBITDA can be prepared as set forth herein and (ii) use commercially reasonable efforts to maintain the Business.
(g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end business days after acceptance of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all undisputed portion of the assets of the Company, the full report. The Cash Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; provided, however that the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000), and (ii) Two Million Dollars ($2,000,000). Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Purchase Price shall be payable in immediately available funds by Buyer wire transfer or certified check. The Stock Contingent Purchase Price shall be payable in unregistered shares of Parent Stock, in an amount of shares equal to Sellerthe quotient obtained by dividing: (x) the Stock Contingent Purchase Price payable in such quarter, by (y) the average closing price of one share of Parent Stock as quoted on the NASDAQ National Market for the most recent ten (10) trading day period ending on the last trading day of each fiscal quarter, with a fraction equal to or greater than 0.500 rounded up to the nearest whole number and any fraction less than 0.500 rounded down to the nearest whole number.
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Contingent Purchase Price. Subject In addition to the provisions of this Section 2.7Closing Purchase Price, Buyer shall pay Seller a cash amount equal to (a) the amount by which the Company 2012 EBITDA exceeds Seven Million Dollars ($7,000,000); provided that in no event shall the maximum amount payable by Buyer to Seller pursuant to this Section 2.7 exceed Two Million Dollars ($2,000,000) (such amount, as finally determined pursuant to this Section 2.7, being the “Contingent Price”). The Contingent Price Holders shall be determined and paid in accordance with eligible for the following provisions of this Section 2.7Contingent Purchase Price computed as follows:
(a) The Company With respect to the first year after Closing, the Contingent Purchase Price shall prepare equal $5,000,000 if during the Company’s financial statements for period from the 2012 fiscal Closing Date until the first month end following the one year ended December 31, 2012 (at the conclusion of such period consistent with past practice anniversary of the CompanyClosing Date (or the month end if the one year anniversary occurs on a month end) in accordance with GAAP and Section 2.7(a) of the Disclosure Schedule. The Company shall have the Company’s 2012 financial statements audited by a certified public accounting firm selected by the Company. The Company shall use commercially reasonable efforts to have such audit completed and the resulting audit report delivered no later than April 30, 2013, and in any event, the Company shall cause such audit to be completed and the resulting audit report delivered no later than September 30, 2013. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements of the Company (the “Company 2012 Financial StatementsFirst Period”) and in any event no later than September 30, 2013, the Company shall deliver a copy has been able to maintain substantive sales relationships with substantially all of the Company 2012 Financial Statements to Buyer and Seller together with written notice, based customers listed on such financial statements, of the Company 2000 XXXXXX and calculation of the Contingent Price Schedule 3.9(a) (such financial statements and written notice being the “Contingent Price NoticeRetained Customers”).
(b) Buyer With respect to the second year after Closing, the Contingent Purchase Price shall equal $2,500,000 if during the period beginning on the day following the end of the First Period until the one year anniversary of the last day of the First Period (the “Second Period”) the Company has been able to maintain substantive sales relationships with substantially all of the Retained Customers.
(c) During the period from the Closing Date to the end of the Second Period and Seller in an effort to maintain substantive sales relationships with substantially all of the Retained Customers, Purchaser and the Company will treat all Retained Customers in a commercially reasonable manner and will not, directly or indirectly, take any actions in bad faith that would have the purpose of avoiding or reducing any of the Contingent Purchase Price hereunder.
(d) For purposes of determining whether the Company has maintained substantive sales relationships with a particular Retained Customers, Purchaser and the Company shall count a maintained relationship with such Retained Customer by Parent Guarantor, by other Affiliates of Parent Guarantor and by any persons who may have forty-succeeded to any of the businesses of Purchaser, the Company, Parent Guarantor or other Affiliates of Parent Guarantor. On a quarterly basis during each of the First Period and the Second Period, Purchaser, the Holders’ Representative, Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxx Xxxxx, Xx. and Xxxx Xxxxx Xxxxx shall schedule a face to face meeting to discuss (i) whether it appears that the Holders are on track to earn the applicable Contingent Purchase Price, (ii) whether any Specified Force Majeures have occurred, (iii) what effect such Specified Force Majeure may have had on the ability to maintain substantive sales relationships with the Retained Customers, (iv) whether there are any indications that a relationship with any of the Retained Customers is in jeopardy and, if so, to discuss and seek to implement an action plan to avoid the Company’s losing such relationship, and (iv) such other considerations and performance measures as may be relevant to the analysis. Within forty five (45) days from after the date end of each of the First Period and the Second Period, Purchaser shall deliver to Holders’ Representative a report indicating whether the Company has been able to maintain substantive sales relationships with substantially all of the Retained Customers during each such period and its determination of whether the Contingent Purchase Price is payable for such period. Following the delivery of each such report, Purchaser shall provide the Holders’ Representative and its representatives access to the records, properties and personnel of Purchaser, the Company, the Parent Guarantor and its Affiliates relating to the relationship with each of the Retained Customers, and shall cause the personnel of the Purchaser, the Company, the Parent Guarantor and its Affiliates to cooperate with the Holders’ Representative in connection with the Holders’ Representative’s review of such information. The Holders’ Representative shall have forty five (45) days to object in writing to the Purchaser’s determination of whether a Contingent Purchase Price is payable for such period. If the Holders’ Representative timely objects in writing to such determination by Purchaser and the Parties cannot agree to a settlement of such issue in the following thirty (30) days, the determination of whether the Contingent Purchase Price is payable for the applicable period shall be resolved by an arbitration process, as hereinafter provided. The Contingent Purchase Price shall be paid to the Seller (or to the Holders’ Representative for the benefit of the Seller and the Holders or to the Holders, if and to the extent so directed by the Holders’ Representative in advance of such payment) within ten (10) days of the final determination of whether the Contingent Purchase Price is due for such period. Any arbitration pursuant to this Section 3.9 shall be conducted in Wilmington, Delaware or such other location as the parties may agree. The arbitration shall be conducted by one arbitrator (if the parties can agree on a single arbitrator) or, if not, by three arbitrators. If there is to be a panel of three arbitrators, the Holders’ Representative shall appoint its arbitrator in its request for arbitration (a “Request”). The Purchaser shall appoint its arbitrator within 20 days of receipt of the Request and shall notify the Holders’ Representative of such appointment in writing. If the Purchaser fails to appoint an arbitrator within such 20 day period, the arbitrator named in the Request shall decide the dispute over whether the Contingent Purchase Price Notice (is payable as the “Contingent Price Review Period”) to review sole arbitrator. Otherwise, the Company 2012 Financial Statements two arbitrators appointed by the parties shall appoint a third arbitrator within 20 days after the Purchaser has notified the Holders’ Representative of the appointment of the Purchaser’s arbitrator. All of the arbitrators shall be attorneys who practice business law or commercial litigation. When the arbitrators appointed by the parties have appointed a third arbitrator and the Company’s calculations third arbitrator has accepted the appointment, the two arbitrators shall promptly notify the parties of such appointment. If the two arbitrators appointed by the parties fail or are unable to appoint a third arbitrator or to notify the parties of such appointment, then the third arbitrator shall be appointed by the President of the Company 2012 EBITDA and American Arbitration Association which shall promptly notify the Contingent Price. During the Contingent Price Review Period, the Company shall provide Buyer, Seller and their Representatives with reasonable access to the relevant books and records parties of the Company (including work papers prepared by the Company’s in-house and outside accountants) relating to the preparation appointment of the Company 2012 Financial Statements and to third arbitrator. The third arbitrator shall act as chairman of the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and panel. The arbitration decision shall be in a manner that does not unreasonably interfere with the normal business operations of the Company.
(c) On or prior to the last day of the Contingent Price Review Period, Buyer or Seller (or both) may object to the Company’s determination of the Company 2012 EBITDA writing and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties a written statement setting forth such Party’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s disagreement therewith (each, a “Statement of Contingent Price Objections”). To the extent Buyer and Seller each fails to deliver a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice shall be deemed to have been accepted by Buyer and Seller. If either Buyer or Seller (or both) delivers a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, Buyer and Seller shall negotiate in good faith to resolve the objections stated therein within thirty (30) days after the date of delivery to the Parties of any Statement of Contingent Price Objections (the “Contingent Price Resolution Period”), and, if the same are so resolved within the Contingent Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are agreed to in writing by Buyer and Seller, shall be final and binding on the Parties.
(d) If Seller and Buyer fail within the Contingent Price Resolution Period to reach an agreement with respect to all of the objections set forth in any Statement of Contingent Price Objections, then the objections of Buyer or Seller (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price Objections”) shall be submitted for resolution to the Independent Accountants who, acting as experts and not arbitrators, shall resolve the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) and, based on such resolution, shall make applicable adjustments to the determination of the Company 2012 EBITDA and the related determination of the Contingent Priceparties. Each of Seller and Buyer shall pay fifty percent (50%) of the fees and expenses of the Independent Accountants engaged for the purposes of this Section 2.7(d).
(e) Seller and Buyer shall use commercially reasonable efforts to cause the Independent Accountants to make a written determination with respect to the Outstanding Contingent Price Objections and any corresponding adjustments to the Company’s determination of the Company 2012 EBITDA and the related determination of the Contingent Price as soon as practicable, and in any event within thirty (30) days, after their engagement. The Independent Accountants’ resolution of the Outstanding Contingent Price Objections and related adjustments (if any) to the Company 2012 EBITDA and the related determination of the Contingent Price shall be final, conclusive and binding Judgement upon the Partiesdecision may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets.
(f) Buyer covenants and agrees that, following the Closing Date and throughout the 2012 calendar year, Buyer shall cause the Company to, (i) maintain separate financial statements for the Business such that the Company 2012 EBITDA can be prepared as set forth herein and (ii) use commercially reasonable efforts to maintain the Business.
(g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, the full Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; provided, however that the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000), and (ii) Two Million Dollars ($2,000,000). Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Price shall be payable by Buyer to Seller.
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Contingent Purchase Price. Subject to Promptly following the provisions preparation of any Statements in accordance with subsection (a) of this Section 2.7Section, Buyer shall pay Seller a cash amount equal to (a) the amount by which the Company 2012 EBITDA exceeds Seven Million Dollars ($7,000,000); provided that in no event shall the maximum amount payable by Buyer deliver to Seller pursuant to this Section 2.7 exceed Two Million Dollars ($2,000,000) (such amount, as finally determined pursuant to this Section 2.7, being the “Contingent Price”). The Contingent Price shall be determined and paid in accordance with the following provisions of this Section 2.7:
(a) The Company shall prepare the Company’s financial statements for the 2012 fiscal year ended December 31, 2012 (at the conclusion of such period consistent with past practice of the Company) in accordance with GAAP and Section 2.7(a) of the Disclosure Schedule. The Company shall have the Company’s 2012 financial statements audited by a certified public accounting firm selected by the Company. The Company shall use commercially reasonable efforts to have such audit completed and the resulting audit report delivered no later than April 30, 2013, and in any event, the Company shall cause such audit to be completed and the resulting audit report delivered no later than September 30, 2013. Within five (5) Business Days following its receipt of such audit report and related 2012 financial statements of the Company (the “Company 2012 Financial Statements”) and in any event no later than September 30, 2013, the Company shall deliver a copy of the Company 2012 Financial Statements to Buyer and Seller together with written notice, based on such financial statements, of the Company 2000 XXXXXX and calculation of the Contingent Price (such financial statements and written notice being the “Contingent Price Notice”).
(b) Buyer and Seller shall have forty-five (45) days from the date of receipt of the Contingent Price Notice (the “Contingent Price Review Period”) to review the Company 2012 Financial Statements and the Company’s calculations of the Company 2012 EBITDA and the Contingent Price. During the Contingent Price Review Period, the Company shall provide Buyer, Seller and their Representatives with reasonable access to the relevant books and records of the Company (including work papers prepared by the Company’s in-house and outside accountants) relating to the preparation of the Company 2012 Financial Statements and to the Company’s relevant personnel as Buyer or Seller may reasonably request for the purpose of reviewing the Company 2012 Financial Statements and compliance with the provisions of this Section 2.7; provided that such access shall be during normal business hours and shall be in a manner that does not unreasonably interfere with the normal business operations of the Company.
(c) On or prior to the last day of the Contingent Price Review Period, Buyer or Seller (or both) may object to the Company’s determination of the Company 2012 EBITDA and the Contingent Price as set forth in the Contingent Price Notice by delivering to the other Parties a written statement setting forth such Party’s objections in reasonable detail, indicating each disputed item or amount and the basis for such Party’s disagreement therewith (each, a “Statement of Contingent Price Objections”). To the extent Buyer and Seller each fails to deliver a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice shall be deemed to have been accepted by Buyer and Seller. If either Buyer or Seller (or both) delivers a Statement of Contingent Price Objections before the expiration of the Contingent Price Review Period, Buyer and Seller shall negotiate in good faith to resolve the objections stated therein within thirty (30) days after the date of delivery to the Parties of any Statement of Contingent Price Objections (the “Contingent Price Resolution Period”), and, if the same are so resolved within the Contingent Price Resolution Period, the Company’s determination of the Company 2012 EBITDA and the Contingent Price contained in the Contingent Price Notice, with such changes as are agreed to in writing by Buyer and Seller, shall be final and binding on the Parties.
(d) If Seller and Buyer fail within the Contingent Price Resolution Period to reach an agreement with respect to all of the objections set forth in any Statement of Contingent Price Objections, then the objections of Buyer or Seller (or both), as applicable, that remain unresolved (the “Outstanding Contingent Price Objections”) shall be submitted for resolution to the Independent Accountants who, acting as experts and not arbitrators, shall resolve the Outstanding Contingent Price Objections in the manner described in Section 2.4(f)(ii) and, based on such resolution, shall make applicable adjustments to the determination of the Company 2012 EBITDA and the related determination of the Contingent Price. Each of Seller and Buyer shall pay fifty percent (50%) of the fees and expenses of the Independent Accountants engaged for the purposes of this Section 2.7(d).
(e) Seller and Buyer shall use commercially reasonable efforts to cause the Independent Accountants to make a written determination with respect to the Outstanding Contingent Price Objections and any corresponding adjustments to the Company’s determination of the Company 2012 EBITDA and the related determination of the Contingent Price as soon as practicable, and in any event within thirty (30) days, after their engagement. The Independent Accountants’ resolution of the Outstanding Contingent Price Objections and related adjustments (if any) to the Company 2012 EBITDA and the related determination of the Contingent Price shall be final, conclusive and binding upon the Parties.
(f) Buyer covenants and agrees that, following the Closing Date and throughout the 2012 calendar year, Buyer shall cause the Company to, (i) maintain separate financial statements for the Business such that the Company 2012 EBITDA can be prepared as set forth herein and (ii) use commercially reasonable efforts to maintain the Business.
(g) Notwithstanding any other provision of this Agreement to the contrary, if, before the end of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration in excess of Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, the full Contingent Price shall be deemed to have been earned by Seller and shall be payable by Buyer to Seller on the date of completion of such sale; provided, however that the amount of the Contingent Price shall be the lesser of (i) fifty percent (50%) of the amount by which the total consideration in such sale transaction exceeds Thirty Five Million Dollars ($35,000,000)Statements, and (ii) Two Million Dollars a reasonably detailed calculation of the Contingent Purchase Price payable as a consequence of the Adjusted EBITACO reflected thereon. The "Contingent Purchase Price" shall equal two times Adjusted EBITACO as shown on the 1997 Statements or on any of the Subsequent Statements, it being Seller's option ($2,000,000which option shall be exercisable during the time period specified in the next sentence) to elect which twelve-month period with respect to which it shall receive the Contingent Purchase Price. Within twenty (20) days after the expiration of the time period specified in Section 2.6(a) with respect to any Statements or, if there is a dispute regarding such Statements or the Contingent Purchase Price payable as a consequence of the contents thereof, within twenty (20) days after the resolution of such dispute pursuant to Section 2.6(b), Seller shall notify Buyer in writing if it elects to exercise its option to receive the Contingent Purchase Price with respect to such Statements and the twelve-month period covered thereby. Notwithstanding any other provision If Seller fails to so notify Buyer that it elects to receive the Contingent Purchase Price with respect to such Statements and the twelve-month period covered thereby, it shall no longer have the option to receive the Contingent Purchase Price with respect to such Statements and the twelve-month period covered thereby and Buyer shall thereupon, for a period of this Agreement twenty (20) days, have the right to require Seller to receive the Contingent Purchase Price with respect to such Statements and the twelve-month period covered thereby, PROVIDED, HOWEVER, that such right on the part of Buyer shall not apply with respect to the contrarytwelve-month periods ended on the first, if, before the end second or third anniversaries of the 2012 calendar year, the Company, Buyer or the Business is sold to a Third Party for total consideration which is less than or equal to Thirty Five Million Dollars ($35,000,000), whether through a stock sale, merger, reorganization, recapitalization or other similar transaction involving the Company or Buyer or a sale of substantially all of the assets of the Company, no Contingent Price shall be payable by Buyer to SellerClosing Date.
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