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Common use of Final Adjustment Clause in Contracts

Final Adjustment. On or before the date which is ninety (90) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyer.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Mediacom Capital Corp), Asset Purchase Agreement (Mediacom LLC), Asset Purchase Agreement (Jones Cable Income Fund 1-C LTD)

Final Adjustment. On or before the date which is ninety (90a) ---------------- As soon as practicable, but in no event later than 60 days after following the Closing Date, Seller shall determine Compression's Closing Date Working Capital and Buyer shall afford Seller, or its representatives reasonable access to the books, records and personnel of Compression for the purpose of making such determination. Within such 60-day period, Seller shall deliver to Buyer a final calculation of written statement (the adjustments calculated as "Closing Date Working Capital Statement") setting forth its determination of the Closing Date Working Capital. If Buyer objects to the Closing Date Working Capital Statement, such objection shall be made in writing and delivered to Seller within 15 days following Buyer's receipt of the Closing Date Working Capital Statement, failing which such statement shall be deemed to have been accepted by Buyer. Seller and Buyer shall promptly meet and in good faith attempt to resolve any objections raised by Buyer. Any objections that are not resolved between Seller and Buyer within 15 days following Seller's receipt of Buyer's statement of objections shall be submitted to binding arbitration to be conducted by a representative of Ernst & Young LLP, which shall represent Seller, a representative of Deloitte & Touche, LLP which shall represent Buyer, and another nationally recognized accounting firm (other than KPMG Peat Marwick) mutually acceptable to Buyer and Seller and selected within 30 days of the date of the submission of the statement of objections. The fees of each accounting firm representative shall be paid by the party that it represents, and responsibility for payment of the fees of the third party accounting firm shall be divided equally between Buyer and Seller. Such arbitrating body shall make its determination within 90 days of the date the objections are first submitted for arbitration, and such determination shall be final, non-appealable and binding upon the parties. (b) If the Closing Date Working Capital determined pursuant to Section 2.4(a) exceeds the Estimated Working Capital, then Buyer shall, within five business days of the earlier of the date that Buyer accepts the Closing Date Working Capital Statement or any disputes with respect to the Closing Date Working Capital Statement have otherwise been resolved (the "Final AdjustmentAcceptance Date"), together with such supporting documentation as Buyer may reasonably request, which shall evidence pay Seller in reasonable detail cash the nature and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies amount of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detailexcess. If the dispute Closing Date Working Capital determined pursuant to Section 2.4(a) is not resolved less than the Estimated Working Capital, Seller shall, within five business days of the Acceptance Date, pay Buyer in cash the amount of such deficiency. Interest shall accrue and be due with respect to any payments due by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment one party to the other hereunder at the rate of 7% per annum beginning on the difference between 91st day following the Final Adjustment amount Closing Date, and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following any such payments (aincluding any interest accrued therein) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne made by the non-prevailing party as determined bank wire transfer of immediately available funds to an account specified in writing by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyerpayee to payor.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Universal Compression Inc), Stock Purchase Agreement (Universal Compression Holdings Inc)

Final Adjustment. On or before the date which is ninety Within fifteen (9015) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes determination of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer Statement and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment Amount in reasonable detail. accordance with this Section 2.8, the Preliminary Merger Consideration shall be adjusted as follows: (i) If the dispute is not resolved by Final Adjustment Amount exceeds the parties within 30 days from the date of receipt by Seller of written notice from BuyerEstimated Adjustment Amount (such excess, the parties agree “Adjustment Amount Excess”), then: (A) Parent shall deposit or cause to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (be deposited with the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or SellerPaying Agent, as the case may be, shall make (or, for distribution to the extent held Shareholders in escrowaccordance with their Pro Rata Percentages, Buyer an aggregate amount equal to the Adjustment Amount Excess; and Seller (B) the Shareholder Representative and Parent shall jointly instruct the Escrow Agent to make) appropriate payment deposit with the Paying Agent, for distribution to the other of Shareholders in accordance with their Pro Rata Percentages, the difference between True-Up Escrow Amount in accordance with the Escrow Agreement; (ii) If the Final Adjustment Amount is less than the Estimated Adjustment Amount (the absolute value of such shortfall, the “Adjustment Amount Shortfall”), then the Shareholders, jointly and severally, shall pay or cause to be paid to Parent an amount equal to the Adjustment Amount Shortfall. Such payment shall be made by disbursement to Parent from the True-Up Escrow Amount an amount equal to the Adjustment Amount Shortfall (and the adjustment Shareholder Representative and Parent shall jointly instruct the Escrow Agent to make such disbursement) and: (A) if the Adjustment Amount Shortfall is less than the amount paid at Closing pursuant of the True-Up Escrow Amount, the Shareholder Representative and Parent shall jointly instruct the Escrow Agent to deposit with the Paying Agent, for distribution to the Initial Adjustment Certificate within three business days following (a) Shareholders in accordance with their Pro Rata Percentages, the agreement remaining balance of the parties as to True-Up Escrow Amount in accordance with the Final Adjustment, (b) the resolution of any dispute by the partiesEscrow Agreement; or (cB) if the Adjustment Amount Shortfall exceeds the amount of the True-Up Escrow Amount (the amount of any such excess being the “Excess Deficiency Amount”), then the Shareholders, jointly and severally, will pay or cause to be paid to Parent an amount equal to the Excess Deficiency Amount by wire transfer of immediately-available funds to a bank account designated in writing by Parent (or, at Parent’s sole option, the Escrow Agent will disburse from the Indemnification Escrow Amount and pay to Parent an amount equal to the Excess Deficiency Amount, and the Shareholder Representative and Parent shall jointly instruct the Escrow Agent to make such disbursement); and (iii) If the Final Adjustment Amount is equal to the Estimated Adjustment Amount, then: (A) the receipt of Closing Merger Consideration shall not be adjusted pursuant to this Section 2.8(e); and (B) the Independent Accountant's final determinationShareholder Representative and Parent shall jointly instruct the Escrow Agent to deposit with the Paying Agent, as for distribution to the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determinationShareholders in accordance with their Pro Rata Percentages, the costs and expenses of True-Up Escrow Amount in accordance with the Independent Accountant shall be borne equally by the Seller and the BuyerEscrow Agreement.

Appears in 1 contract

Samples: Merger Agreement (Communications Systems Inc)

Final Adjustment. On or before the date which is ninety (90a) ---------------- days The Adjustment Basket, as defined on Schedule B, shall be determined as soon as practicable after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as second anniversary of the Closing Date or such earlier date as the Purchasers request and the Transaction Committee agrees, which agreement will not be unreasonably withheld (the "Final Adjustment"“Test Date”), together with such supporting documentation as Buyer may reasonably request, which . The Company shall evidence engage its independent public accountants to prepare and deliver a report to the Transaction Committee and the Purchasers setting forth in reasonable detail the nature calculation of the Adjustment Basket (the “Adjustment Basket Report”). (b) The Company shall provide such independent public accountants with full access to its books and extent of each adjustment. For records for the purposes of preparing the Final AdjustmentAdjustment Basket Report. Such accountants shall keep the Transaction Committee and the Purchasers informed as to the progress of the Adjustment Basket Report, Tentative Subscribers who and the Transaction Committee and the Purchasers shall have paid the right to participate and comment upon the Adjustment Basket Report. Any reviews pursuant to paragraph (c) below shall also be subject to the provisions of this paragraph. (c) After receipt of the Adjustment Basket Report, the Transaction Committee and the Purchasers shall have the right to make a full monthly xxxx generated review of the Adjustment Basket Report including, but not limited to, access by such professionals as Purchasers may deem necessary to all of the workpapers and reports prepared by the independent public accountants in connection with such Adjustment Basket Report. The Transaction Committee may object to the ordinary course of business Adjustment Basket Report by giving written notice to the Purchasers, and the Purchasers (acting collectively) may object to the Adjustment Basket Report by giving written notice to the Transaction Committee, in each case, within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written date on which the Adjustment Basket Report is delivered. Any such notice describing in reasonable detail shall state the dispute, together with Buyer's determination as to basis of the Final Adjustment objections in reasonable detail. The Transaction Committee and the Purchasers shall then endeavor in good faith to resolve the dispute as soon as possible. If the dispute is not resolved by within 10 days after receipt of the parties objection, within five days thereafter, the Transaction Committee and the Purchasers shall mutually agree on a firm of independent accountants, an independent actuary and/or an independent pricing service to review the Adjustment Basket Report or one or more components thereof, who shall complete such reviews within 30 days from of appointment. Based upon such independent reviews, the independent accountants referred to in the preceding sentence shall select either the adjusted basket report recommended by the Transaction Committee or that recommended by the Purchasers, whichever is closer to the independent review, and the adjusted basket report so selected shall be dispositive. (d) If the Adjustment Basket is less than zero, within five business days after the last date on which the Adjustment Basket Report may be objected to or the date of receipt by Seller of written notice from Buyeron which all reviews following any such objection have been completed (the “Second Applicable Date”), the parties agree Company shall issue and deliver to engage Ernst & Young each Purchaser one or another "big six" accounting firm mutually acceptable more certificates registered in the name of such Purchaser (or its designee) representing that number of Preference Shares equal to Seller the difference between NF — N, where: N = number of Preference Shares purchased by such Purchaser (after giving effect to any adjustment pursuant to Section B.1); P = Per Share Price; B = absolute value of the Adjustment Basket; and Buyer NF = such Purchaser’s Total Purchase Price divided by [P – B/12.86 million]. (e) If the "Independent Accountant"Adjustment Basket is greater than zero, the Company at the direction of the Transaction Committee may use cash in an amount equal to B to repurchase Common Shares (other than any Conversion Shares or Warrant Shares) without regard to resolve the dispute within 30 days after restriction on repurchases set forth in Article VI of the Shareholders Agreement. (f) In addition to paragraph (e), if the Adjustment Basket is less than zero and in the event that a Triggering Event occurs, then, on the Second Applicable Date, the Company shall also issue and deliver to each Purchaser a number of Preference Shares equal to the difference between (A) such engagement. The Independent Accountant's determination Purchaser’s Total Purchase Price divided by an amount equal to [P — $1.50 — B/12.86 million] and (B) the Purchaser’s Total Purchase Price divided by an amount equal to (P — $1.50). (g) On the fourth anniversary of the Closing Date, there shall be final and binding on a calculation of a further Adjustment Basket, taking into account ONLY the parties. Buyer or Seller, as following: (i) the case may be, shall make matters listed in clause (oriii) of the definition of Non-Core Assets, to the extent held not previously included in escrow, Buyer the first Adjustment Basket and Seller shall instruct the Escrow Agent to make(ii) appropriate payment to the other any actual losses arising out of any breach of the difference between representations set forth in Section D.3.h or D.3.k discovered after the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement second anniversary of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerClosing.

Appears in 1 contract

Samples: Subscription Agreement (Arch Capital Group LTD)

Final Adjustment. On or before the date which is ninety (90a) ---------------- days The Adjustment Basket, as defined on Schedule B, shall be determined as soon as practicable after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as second anniversary of the Closing Date or such earlier date as the Purchasers request and the Transaction Committee agrees, which agreement will not be unreasonably withheld (the "Final AdjustmentTest Date"), together with such supporting documentation as Buyer may reasonably request, which . The Company shall evidence engage its independent public accountants to prepare and deliver a report to the Transaction Committee and the Purchasers setting forth in reasonable detail the nature calculation of the Adjustment Basket (the "Adjustment Basket Report"). (b) The Company shall provide such independent public accountants with full access to its books and extent of each adjustment. For records for the purposes of preparing the Final AdjustmentAdjustment Basket Report. Such accountants shall keep the Transaction Committee and the Purchasers informed as to the progress of the Adjustment Basket Report, Tentative Subscribers who and the Transaction Committee and the Purchasers shall have paid the right to participate and comment upon the Adjustment Basket Report. Any reviews pursuant to paragraph (c) below shall also be subject to the provisions of this paragraph. (c) After receipt of the Adjustment Basket Report, the Transaction Committee and the Purchasers shall have the right to make a full monthly xxxx generated review of the Adjustment Basket Report including, but not limited to, access by such professionals as Purchasers may deem necessary to all of the workpapers and reports prepared by the independent public accountants in connection with such Adjustment Basket Report. The Transaction Committee may object to the ordinary course of business Adjustment Basket Report by giving written notice to the Purchasers, and the Purchasers (acting collectively) may object to the Adjustment Basket Report by giving written notice to the Transaction Committee, in each case, within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written date on which the Adjustment Basket Report is delivered. Any such notice describing in reasonable detail shall state the dispute, together with Buyer's determination as to basis of the Final Adjustment objections in reasonable detail. The Transaction Committee and the Purchasers shall then endeavor in good faith to resolve the dispute as soon as possible. If the dispute is not resolved by within 10 days after receipt of the parties objection, within five days thereafter, the Transaction Committee and the Purchasers shall mutually agree on a firm of independent accountants, an independent actuary and/or an independent pricing service to review the Adjustment Basket Report or one or more components thereof, who shall complete such reviews within 30 days from of appointment. Based upon such independent reviews, the independent accountants referred to in the preceding sentence shall select either the adjusted basket report recommended by the Transaction Committee or that recommended by the Purchasers, whichever is closer to the independent review, and the adjusted basket report so selected shall be dispositive. (d) If the Adjustment Basket is less than zero, within five business days after the last date on which the Adjustment Basket Report may be objected to or the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer on which all reviews following any such objection have been completed (the "Independent AccountantSecond Applicable Date"), the Company shall issue and deliver to each Purchaser one or more certificates registered in the name of such Purchaser (or its designee) representing that number of Preference Shares equal to resolve the dispute within 30 days difference between NF - N, where: N = number of Preference Shares purchased by such Purchaser (after giving effect to any adjustment pursuant to Section B.1); P = Per Share Price; B = absolute value of the Adjustment Basket; and NF = such engagement. The Independent AccountantPurchaser's determination Total Purchase Price divided by [P - B/12.86 million]. (e) If the Adjustment Basket is greater than zero, the Company at the direction of the Transaction Committee may use cash in an amount equal to B to repurchase Common Shares (other than any Conversion Shares or Warrant Shares) without regard to the restriction on repurchases set forth in Article VI of the Shareholders Agreement. (f) In addition to paragraph (e), if the Adjustment Basket is less than zero and in the event that the class B warrants vest, then, on the Second Applicable Date, the Company shall also issue and deliver to each Purchaser (as a further adjustment for the vesting of the class B warrants) a number of Preference Shares equal to the difference between (A) such Purchaser's Total Purchase Price divided by an amount equal to [P - $1.50 - B/12.86 million] and (B) the Purchaser's Total Purchase Price divided by an amount equal to (P - $1.50). (g) On the fourth anniversary of the Closing Date, there shall be final and binding on a calculation of a further Adjustment Basket, taking into account ONLY the parties. Buyer or Seller, as following: (i) the case may be, shall make matters listed in clause (orc) of the definition of Non-Core Assets, to the extent held not previously included in escrow, Buyer the first Adjustment Basket and Seller shall instruct the Escrow Agent to make(ii) appropriate payment to the other any actual losses arising out of any breach of the difference between representations set forth in Section D.3.h or D.3.k discovered after the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement second anniversary of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerClosing.

Appears in 1 contract

Samples: Subscription Agreement (Warburg Pincus LLC)

Final Adjustment. On or before the date which is ninety Within five (905) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes determination of the Final AdjustmentNet Working Capital, Tentative Subscribers who have paid a full monthly xxxx generated in Final Closing Cash, Final Closing Transaction Expenses, Final Closing Indebtedness, and Final Purchase Price: (i) if the ordinary course Final Purchase Price is less than the Estimated Purchase Price (the absolute value of business within 30 days following Closing will be included in such difference referred to herein as the final calculation “Negative Purchase Price Adjustment Amount”), and the Negative Purchase Price Adjustment Amount is greater than the size of Equivalent Basic Subscribers. Seller shall cooperate with the Adjustment Escrow Account, then (A) the Buyer and provide reasonable access the Sellers’ Representative shall deliver a joint letter to the necessary personnel and records of Seller and deliver Escrow Agent instructing it to Buyer copies of such records as Buyer may reasonably requestpromptly disburse, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt on behalf of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (orSellers, to the extent held in escrowBuyer, all of the funds from the Adjustment Escrow Account, by delivery by wire transfer of immediately available funds to an account designated by the Buyer, and (B) the Sellers, on a several but not joint basis, shall be liable for and pay to the Buyer an aggregate amount of cash equal to the amount by which the Negative Purchase Price Adjustment Amount exceeds the size of the Adjustment Escrow Account, by delivery by wire transfer of immediately available funds to an account designated by the Buyer; (ii) if the Final Purchase Price is less than the Estimated Purchase Price and the Negative Purchase Price Adjustment Amount is less than the size of Adjustment Escrow Account, then Buyer and Seller the Sellers’ Representative shall instruct deliver a joint letter to the Escrow Agent instructing it to make(A) appropriate payment promptly disburse, on behalf of the Sellers to the other Buyer, from the Adjustment Escrow Account, an amount of cash equal to the Negative Purchase Price Adjustment Amount by delivery by wire transfer of immediately available funds to an account designated by Buyer, and (B) promptly disburse to the Sellers’ Representative, from the Adjustment Escrow Account, an amount of cash equal to the amount remaining in the Adjustment Escrow Account following the disbursement contemplated by Section 2.4(f)(ii)(A), by wire transfer of immediately available funds to an account or accounts designated by the Sellers’ Representative (iii) if the Final Purchase Price is greater than the Estimated Purchase Price (the absolute value of such difference referred to herein as the “Positive Purchase Price Adjustment Amount”), then (A) Buyer and the Sellers’ Representative shall deliver a joint letter to the Escrow Agent instructing it to promptly disburse to the Sellers’ Representative from the Adjustment Escrow Account the Adjustment Escrow Amount, and (B) the Buyer shall pay to the Sellers’ Representative an aggregate amount of cash equal to the amount of the difference between Positive Purchase Price Adjustment Amount, in each case by delivery by wire transfer of immediately available funds to an account or accounts designated by the Final Adjustment amount and Sellers’ Representative. (iv) For the avoidance of any doubt, any adjustment amount paid at Closing pursuant required by this Section 2.4 shall be deemed an adjustment to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerPurchase Price.

Appears in 1 contract

Samples: Unit Purchase Agreement (Oxford Industries Inc)

Final Adjustment. On or before (i) Seller and Primary Purchaser shall use reasonable efforts to accurately estimate the date which is ninety apportionments of Net Current Assets of each Partnership Entity as of the Proration Date and hereby agree to re-prorate the items described in Section 7.1(a) as of the Proration Date, based on the actual financial data (90) ---------------- days after including data as to the Closing Datepayment of receivables that were prorated), in accordance with this Section 7.1(c). Not later than May 30, 2016, Seller shall deliver provide to Buyer Primary Purchaser a proposed final calculation statement of Net Current Assets of each of the adjustments calculated Partnership Entities as of the Closing Proration Date (the "each, a “Proposed Final Adjustment"Net Current Assets Statement”), together with supporting documentation. Such Proposed Final Net Current Assets Statement shall take into account all relevant financial data available through such supporting documentation date (taking into account settlements made in accordance with Section 7.1(b), and making any necessary corrections or revisions to the applicable Preliminary Net Current Assets Statement with respect to any Net Current Assets items). Such Proposed Final Net Current Assets Statement shall include a written statement in reasonable detail of any changes to the applicable Preliminary Net Current Assets Statement (or a statement that Seller is not proposing any such changes). Seller shall provide Primary Purchaser any information reasonably requested by Primary Purchaser in order to confirm any Proposed Final Net Current Assets Statement. In the event Primary Purchaser does not agree with any Proposed Final Net Current Assets Statement and Seller and Primary Purchaser cannot agree in good faith to the calculation of any Net Current Assets items set forth in such Proposed Final Net Current Assets Statement (or otherwise proposed by Purchaser), within thirty (30) days after delivery by Seller of such Proposed Final Net Current Assets Statement, the items not agreed to shall be resolved by an independent accounting firm (which firm shall have no conflict with any party (other than Escrow Agent) and shall not have performed any work for any of Seller or Purchasers within the five (5) years preceding the selection of such firm) selected by the American Arbitration Association (the “Accountants”). Within ten (10) days after selection of the Accountants, Seller and Primary Purchaser shall each submit to the Accountants the dollar amount of its proposed adjustment, if any, to Seller’s Net Current Assets as Buyer may reasonably requestreflected on the disputed Proposed Final Net Current Assets Statement, and the Accountants shall make their determination with respect to the items submitted to them within thirty (30) days of the appointment of such Accountants pursuant to this Section 7.1(c)(i). The fees and expenses of the Accountants shall be paid by Seller if Seller’s proposed final adjustment is furthest in dollar amount from the final determination of the Accountants or by Primary Purchaser if Primary Purchaser’s proposed final adjustment is furthest in dollar amount from the final determination of the Accountants; provided that if the dollar amount of the proposed adjustment of each of the parties is within 10% of the final determination of the Accountants, then Seller shall pay 50% of the fees and expenses of the Accountants and the Purchaser s shall pay the other 50% of the fees and expenses of the Accountants. (ii) Seller and Primary Purchaser, promptly after all Seller’s Net Current Assets items have been agreed to or resolved pursuant to Section 7.1(c)(i), shall prepare a final statement for each Partnership Entity reflecting all Net Current Assets items as of the Proration Date, taking into account any settlements made prior to the Closing in accordance with Section 7.1(b) and any further adjustments in accordance with this Section 7.1(c) either agreed to by Seller and Primary Purchaser or resolved by the Accountants (each, a “Final Net Current Assets Statement”), which shall evidence include a net adjustment due in reasonable detail accordance with the nature provisions of this Section 7.1(c) and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller (ii) execute and deliver to Buyer copies the other an original of each Final Net Current Assets Statement. If either Seller or Purchaser refuses to prepare, execute or deliver a Final Net Current Assets Statement, then the other shall have the right to cause the Accountants to prepare such records as Buyer may reasonably requestFinal Net Current Assets Statement, to review which shall be binding upon all of the parties. All Net Current Assets items set forth in the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination Net Current Assets Statements shall be final and binding on upon all of the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyer.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Washington Prime Group Inc.)

Final Adjustment. On or before the date which is ninety (90i) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event No later than 30 days after receipt of the Final Adjustment20 February 2007, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable shall provide to Seller the the Buyer and Buyer (the "Independent Accountant") to resolve Sellers a report stating the dispute within 30 days after such engagementamounts of the Cash Adjustment and the Indebtedness Adjustment. The Independent Accountant's determination amounts of the Cash Adjustment and the Indebtedness Adjustment as so determined by Ernst & Young shall be final and binding on the parties. Buyer or SellerParties, as and shall be used to determine the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other amount of the difference between the Final Adjustment amount (if any), unless, no later than one (1) month after the receipt of such report or, if such report is not timely received, no later than 14 March 2007, either of the Buyer or the Controlling Shareholder notifies the other that it objects to the Indebtedness Adjustment and to the Cash Adjustment as so determined (stating in reasonable detail the reasons for such objection). (ii) If no such notice of objection is given within the time period set forth in Section 2.3(b)(i), the Indebtedness Adjustment and the adjustment amount paid at Closing pursuant Cash Adjustment as determined by Ernst & Young shall be deemed to be final and binding for the purposes of this Section 2.3. (iii) If such a notice of objection is given within the time period set forth in Section 2.3(b)(i), the Controlling Shareholder and the Buyer shall meet and negotiate in good faith in order to reach agreement with respect to the Initial Adjustment Certificate within three business days following (a) the agreement amount of the parties as to the Final Adjustment, . (biv) If no agreement can be reached with respect to the resolution of any dispute by the parties; or (c) the receipt amount of the Independent Accountant's Final Adjustment within fifteen (15) days as from the date of such notice of objection, the Parties agree to the appointment of BDO (the "REVIEW ACCOUNTANTS"), said Review Accountants acting as experts and not as arbitrators, to prepare a final determination, as the case may be. All fees and costs conclusive determination of the Independent Accountant Indebtedness Adjustment and the Cash Adjustment and of the adjustment of the Purchase Price required as a result thereof. The Review Accountants shall be borne by render their report within one (1) month of such retention, which report shall be, one (1) week after it is issued, a final and binding determination of the non-prevailing party as determined by amount of the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determinationIndebtedness Adjustment, the costs Cash Adjustment and expenses the Purchase Price for the purposes of this Section 2.3, absent gross error or gross negligence on the part of the Independent Accountant shall be borne equally by the Seller and the BuyerReview Accountants.

Appears in 1 contract

Samples: Stock Sale and Purchase Agreement (Allergan Inc)

Final Adjustment. On or before the date which is ninety (90i) ---------------- Within 10 days after the Closing DateClosing, Seller Parent shall prepare and deliver to Buyer the Sellers a final draft Final Balance Sheet of each of the Company, JTF Holdco and Tylee Holdco, which shall be prepared in accordance with GAAP consistent with the Financial Statements, and a statement setting forth in reasonable detail Parent’s calculation of the adjustments calculated as Final Working Capital, Final Closing Cash and Final Indebtedness of each of the Closing Date Company, JTF Holdco and Tylee Holdco based upon each draft Final Balance Sheet. (ii) Following its receipt of each draft Final Balance Sheet, the "Sellers shall have 14 days to review each draft Final Adjustment"), together Balance Sheet and to inform Parent in writing of any disagreement that they may have with such supporting documentation as Buyer may reasonably requesteach draft Final Balance Sheet, which shall evidence objection shall, to the extent practicable, specify in reasonable detail Sellers’ disagreement with such draft Final Balance Sheet (the nature “Working Capital Objection”). If Parent does not receive a Working Capital Objection within such 14-day period, each draft Final Balance Sheet shall be deemed to have been accepted and extent of each adjustment. For shall become binding upon the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detailParties. If the dispute is not resolved by the parties within 30 Sellers timely deliver a Working Capital Objection, Parent shall then have 10 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer such Working Capital Objection (the "Independent Accountant"“Working Capital Review Period”) to review and respond to the Working Capital Objection (and Parent shall have the right to examine the work papers and financial records used or generated in connection with the preparation of the Working Capital Objection and such other documents as Parent may reasonably request). Parent and the Sellers shall attempt in good faith to resolve any disagreements with respect to the Final Balance Sheet. If Parent and the Sellers are unable to resolve all of their disagreements with respect to any Final Balance Sheet, Parent and the Sellers shall promptly refer the dispute either to (i) a “Big Four” public accounting firm, or (ii) any other mutually agreeable accounting firm, in either case that is “independent” of both the Parent and the Sellers under the definitions of the Commission (the “CPA Firm”), which CPA Firm shall resolve such disagreements. Parent and the Sellers shall direct the CPA Firm to use its reasonable best efforts to render its determination within 30 20 days after such engagementthe dispute is first submitted to the CPA Firm. The Independent Accountant's CPA Firm’s determination shall be final conclusive and binding on upon Parent and the partiesSellers. Parent and the Sellers shall make readily available to the CPA Firm all relevant books and records and all other items reasonably requested by the CPA Firm. The Final Balance Sheet as determined by the CPA Firm shall be binding upon Parent and Sellers. (iii) To the extent that the sum of Final Net Working Capital and Final Closing Cash minus Final Indebtedness is (A) less than the sum of Estimated Net Working Capital and Estimated Closing Cash minus Estimated Indebtedness for any Final Balance Sheet, the Xxxxx Xxxxxxx, in the case of Tylee Holdco, the JTF Holders, in the case of JTF Holdco, the Company Sellers, in the case of the Company, shall pay, within two Business Days of the determination of the Final Balance Sheet, to Parent in cash, by wire transfer of immediately available funds to the account designated by Parent in writing, the amount of such shortfall and (B) greater than the sum of Estimated Net Working Capital and Estimated Closing Cash minus Estimated Indebtedness for any Final Balance Sheet, for any of the Xxxxx Xxxxxxx, in the case of Tylee Holdco, the JTF Holders, in the case of JTF Holdco, the Company Sellers, in the case of the Company, Parent shall or shall cause Buyer or Sellerto pay, within two Business Days of the determination of the Final Balance Sheet, to the Xxxxx Xxxxxxx, in the case of Tylee Holdco, the JTF Holders, in the case of JTF Holdco, the Company Sellers, in the case of the Company, as the case may be, shall make (orin cash, by wire transfer of immediately available funds to the extent held account designated by such recipient in escrowwriting, Buyer and Seller shall instruct the Escrow Agent to makeamount of such excess. (iv) appropriate payment If any unresolved objections are submitted to the other CPA Firm for resolution as provided above, the fees and expenses of the difference CPA Firm shall be allocated between Parent, on the Final Adjustment one hand, the respective Sellers, on the other hand, based upon the relationship the contested amount and the adjustment amount paid at Closing pursuant not awarded to each party bears to the Initial Adjustment Certificate within three business days following (a) amount actually contested by such party. By way of example, if Parent claims that the agreement of appropriate adjustments are $1,000 greater than the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as amount determined by the Independent Accountant; providedSellers, however, that and if the Independent Accountant does not make CPA Firm ultimately resolves such a determinationclaim by awarding to Parent $300 of the $1,000 contested, then the fees, costs and expenses of the Independent Accountant shall CPA Firm will be borne equally by allocated 70% to Parent and 30% to the Seller and the BuyerSellers.

Appears in 1 contract

Samples: Stock Purchase Agreement (City Office REIT, Inc.)

Final Adjustment. On (i) Parent and the Surviving Corporation will prepare (or before cause to be prepared) financial statements (“Closing Financial Statements”) of Company as of the date which is ninety Closing Date, including Parent’s good faith determination of the Working Capital as of the Closing Date and the Adjustment Amount. Parent will deliver the Closing Financial Statements to Representative within sixty (9060) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of . During the adjustments calculated as thirty (30) days immediately following the Representative’s receipt of the Closing Date Financial Statements (the "Final Adjustment"“Review Period”), together the Representative will be permitted to make commercially reasonable inquiries of Parent and the Surviving Corporation and their respective employees, accountants and representatives for purposes of determining whether the Representative has any reasonable basis for objection to the Closing Financial Statements and Working Capital and Adjustment Amount calculations. Parent, the Surviving Corporation will, and Parent and the Surviving Corporation will use commercially reasonable efforts to cause their respective auditors to make themselves reasonably available to the Representative and its auditors, employees and other advisors, and make reasonably available to the Representative and its auditors, employees and other advisor, all records and work papers used in preparing the Closing Financial Statements and Working Capital and Adjustment Amount calculations. Assuming such cooperation of Parent, the Surviving Corporation and their respective employees, accountants and representatives, the Working Capital and Adjustment Amount calculations shall be deemed accepted and conclusive and binding, unless Representative shall give written notice to Parent of the items with such supporting documentation as Buyer may reasonably requestwhich Representative, which on behalf of the Effective Time Shareholders and Change in Control Payment Recipients, disagrees (“Disagreement Notice”) within thirty (30) days of the actual receipt by Representative of the Closing Financial Statements (“Disagreement Notice Date”). The Disagreement Notice shall evidence specify each item disagreed with by Representative (or Representative’s calculation thereof) and the dollar amount of the disagreement and specify in reasonable detail the nature basis for each disagreement. Parent and Representative shall, during the twenty (20) days after receipt by Parent of the Disagreement Notice, negotiate in good faith to resolve any such disagreements with respect to the Closing Financial Statements and Working Capital and Adjustment Amount calculations. If at the end of such twenty (20) days, the parties have been unable to resolve their disagreements, such disagreements shall be resolved by KPMG LLP, (the “Unaffiliated Firm”). The Unaffiliated Firm shall (i) resolve the disagreement as to the Closing Financial Statements as promptly as possible after its engagement by the parties, (ii) consider and resolve only those items in the Disagreement Notice which remain unresolved between Parent and Representative, and (iii) otherwise employ such procedures as it, in its sole discretion, deems necessary or appropriate under the circumstances. The determination of the Unaffiliated Firm shall be in accordance with the standards set forth in this Section 1.8. The Unaffiliated Firm shall submit to the parties a report (the “Unaffiliated Firm Report”) of its review of the items in the Disagreement Notice as promptly as practicable and shall include in the Unaffiliated Firm Report its calculation of the Working Capital and the Adjustment Amount, which adjustments shall be no more favorable to Parent than reflected in the Closing Financial Statements, and no more favorable to the Effective Time Shareholders and the Change in Control Payment Recipients than reflected in the Disagreement Notice. The date Parent and Representative receive the Unaffiliated Firm Report shall be the “Unaffiliated Firm Report Date.” The calculations so made by the Unaffiliated Firm in the Unaffiliated Firm Report shall be conclusive and binding on, and non-appealable by, the parties hereto. If the Unaffiliated Firm’s determination of Working Capital is closer to the value initially asserted by Parent to the Unaffiliated Firm, then the Effective Time Shareholders and Change in Control Payment Recipients will pay the fees, costs and disbursements of the Unaffiliated Firm, and the Representative is authorized to pay such fees, costs and disbursements by instructing Parent to deduct the amount thereof from the Final Cash Payment. If the Unaffiliated Firm’s determination of Working Capital is closer to the value initially asserted by the Representative to the Unaffiliated Firm, then Parent will pay the fees, costs and disbursements of Unaffiliated Firm. Each of Parent and the Representative shall promptly cooperate in good faith with the Unaffiliated Firm to assist in the Unaffiliated Firm’s preparation of the Unaffiliated Firm Report, including making available to the extent necessary their respective books, records, work papers, and personnel from and after the Closing Date until the Unaffiliated Firm Report. (ii) On the third (3rd) business day following the final determination of each adjustment. For the purposes Adjustment Amount (such date to be the Disagreement Notice Date or the Unaffiliated Firm Report Date, as applicable), if the Adjustment Amount is greater than the Estimated Adjustment Amount, Parent shall increase the amount of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in Cash Payment by the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies amount of such records as Buyer surplus; and if the Adjustment Amount is less than the Estimated Adjustment Amount, Parent may reasonably request, to review reduce the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt amount of the Final Adjustment, deliver to Seller written notice describing in reasonable detail Cash Payment by the dispute, together with Buyer's determination as to amount of such deficit; provided that if such portion of the Final Adjustment in reasonable detail. If the dispute Cash Payment is not resolved sufficient, then the aggregate value of the Deferred Payments shall be reduced by the parties within 30 days from the date amount of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyeradditional deficiency.

Appears in 1 contract

Samples: Merger Agreement (Evolving Systems Inc)

Final Adjustment. On or before the date which is ninety (90) ---------------- No later than 90 days after the Closing Date, Seller the Buyer shall deliver to Buyer the Seller a written statement setting forth (a) a final calculation balance sheet of Seller with respect to the adjustments calculated Acquired Assets and the Assumed Liabilities as of the Closing Date Date, but without giving effect to the Transaction, prepared in good faith and in accordance with the Working Capital Principles, (b) its proposed calculation of Net Working Capital with respect to the "Final Acquired Assets and the Assumed Liabilities prepared in good faith accordance with the Working Capital Principles and the corresponding Net Working Capital Adjustment"), (c) its proposed calculation of the Approved Fleet CapEx Amount, and (d) its corresponding proposed calculation of the Closing Consideration using its proposed calculation of the Net Working Capital Adjustment and the Approved Fleet CapEx Amount, along with the actual amount of Seller’s documented Employee Benefit Continuation Costs, together with supporting materials for each such supporting documentation as calculation (the “Closing Certificate”). From and after the Seller’s receipt of the Closing Statement until the Net Working Capital (and corresponding Net Working Capital Adjustment) and the Approved Fleet CapEx Amount are each finally determined in accordance with this Article III, the Buyer may shall give the Seller and its Representatives reasonable access during normal business hours to the books and records and the accounting and other appropriate personnel and the independent accountants of the Buyer, solely to the extent relating to the Acquired Assets or the Business, only to the extent reasonably request, which shall evidence in reasonable detail necessary for Seller to obtain information relating to the nature preparation and extent review of each adjustmentthe calculation of Net Working Capital (and corresponding Net Working Capital Adjustment) and the Approved Fleet CapEx Amount. For the purposes avoidance of doubt, the Closing Certificate (and each of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller components thereof) shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be become final and binding on the parties. Buyer or Seller, as Parties on the case may be, shall make (or, 31st day following the delivery of the Closing Certificate if an Objection Notice has not been timely delivered to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller in accordance with Section 3.3. The Parties acknowledge and agree that the purpose of preparing the Closing Certificate and determining the actual Net Working Capital (and corresponding Net Working Capital Adjustment) and the Buyer.Approved Fleet CapEx Amount, and any related post-Closing adjustment in the Purchase Price pursuant to Section 3.4 of this Agreement is to measure changes in the items comprising Net Working Capital (and corresponding Net Working Capital Adjustment) and the Approved Fleet CapEx Amount, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies than those set forth in Annex A and Annex B.

Appears in 1 contract

Samples: Asset Purchase Agreement (McGrath Rentcorp)

Final Adjustment. On or before the date which is ninety ---------------- (90) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-non- prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyer.

Appears in 1 contract

Samples: Asset Purchase Agreement (Jones Cable Income Fund 1-B LTD)

Final Adjustment. On or before the date which is ninety (90i) ---------------- days Within one (1) month after the Closing Date, Seller Ernst & Young shall deliver prepare a report to the Buyer a final calculation and the Sellers stating the amount of the adjustments calculated as Cash Adjustment and the Indebtedness Adjustment. No later than one (1) month after the receipt of such report or, if such report is not timely received, within two (2) months after the Closing Date, the Buyer shall notify to the Sellers whether it objects to the Estimated Indebtedness and to the Estimated Cash Balance (stating in reasonable details the reasons for such objection). (ii) If the Buyer does not give notice to the Sellers, within the time period set forth in Section 2.3(b)(i) after the Closing Date (or if the "Final Adjustment"Buyer has provided written notice to the Sellers that it has no objection to the Estimated Indebtedness and the Estimated Cash Balance), together with such supporting documentation as Buyer may reasonably request, which the Estimated Indebtedness and the Estimated Cash Balance shall evidence in reasonable detail the nature be deemed to be final and extent of each adjustment. For binding for the purposes of this Section 2.3. (iii) If the Buyer gives notice to the Sellers that it objects to the Estimated Indebtedness and to the Estimated Cash Balance, the Controlling Shareholder and the Buyer shall meet and negotiate in good faith in order to reach agreement with respect to the amount of the Final Adjustment. (iv) If no agreement can be reached within fifteen (15) days as from notification of the Buyer's objection, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access Parties agree to the necessary personnel and records appointment of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer BDO (the "Independent AccountantREVIEW ACCOUNTANTS") ), said Review Accountants acting as experts and not as arbitrators, to resolve prepare a final and conclusive determination of the dispute within 30 days after such engagementIndebtedness Adjustment and the Cash Balance Adjustment and of the adjustment of the Purchase Price required as a result thereof. The Independent Accountant's determination Review Accountants shall be render their report within one (1) month of such retention, which report shall be, one (1) week after it is issued, a final and binding determination of the amount of the Indebtedness Adjustment, the Cash Balance Adjustment and the Purchase Price for the purposes of this Section 2.3, absent gross error or gross negligence on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other part of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerReview Accountants.

Appears in 1 contract

Samples: Stock Sale and Purchase Agreement (Allergan Inc)

Final Adjustment. On or before the date which is ninety (90a) ---------------- days The Adjustment Basket, as defined on SCHEDULE B, shall be determined as soon as practicable after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as second anniversary of the Closing Date or such earlier date as the Purchasers request and the Transaction Committee agrees, which agreement will not be unreasonably withheld (the "Final AdjustmentTEST DATE"), together with such supporting documentation as Buyer may reasonably request, which . The Company shall evidence engage its independent public accountants to prepare and deliver a report to the Transaction Committee and the Purchasers setting forth in reasonable detail the nature calculation of the Adjustment Basket (the "ADJUSTMENT BASKET REPORT"). (b) The Company shall provide such independent public accountants with full access to its books and extent of each adjustment. For records for the purposes of preparing the Final AdjustmentAdjustment Basket Report. Such accountants shall keep the Transaction Committee and the Purchasers informed as to the progress of the Adjustment Basket Report, Tentative Subscribers who and the Transaction Committee and the Purchasers shall have paid the right to participate and comment upon the Adjustment Basket Report. Any reviews pursuant to paragraph (c) below shall also be subject to the provisions of this paragraph. (c) After receipt of the Adjustment Basket Report, the Transaction Committee and the Purchasers shall have the right to make a full monthly xxxx generated review of the Adjustment Basket Report including, but not limited to, access by such professionals as Purchasers may deem necessary to all of the workpapers and reports prepared by the independent public accountants in connection with such Adjustment Basket Report. The Transaction Committee may object to the ordinary course of business Adjustment Basket Report by giving written notice to the Purchasers, and the Purchasers (acting collectively) may object to the Adjustment Basket Report by giving written notice to the Transaction Committee, in each case, within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written date on which the Adjustment Basket Report is delivered. Any such notice describing in reasonable detail shall state the dispute, together with Buyer's determination as to basis of the Final Adjustment objections in reasonable detail. The Transaction Committee and the Purchasers shall then endeavor in good faith to resolve the dispute as soon as possible. If the dispute is not resolved by within 10 days after receipt of the parties objection, within five days thereafter, the Transaction Committee and the Purchasers shall mutually agree on a firm of independent accountants, an independent actuary and/or an independent pricing service to review the Adjustment Basket Report or one or more components thereof, who shall complete such reviews within 30 days from of appointment. Based upon such independent reviews, the independent accountants referred to in the preceding sentence shall select either the adjusted basket report recommended by the Transaction Committee or that recommended by the Purchasers, whichever is closer to the independent review, and the adjusted basket report so selected shall be dispositive. (d) If the Adjustment Basket is less than zero, within five business days after the last date on which the Adjustment Basket Report may be objected to or the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer on which all reviews following any such objection have been completed (the "Independent AccountantSECOND APPLICABLE DATE"), the Company shall issue and deliver to each Purchaser one or more certificates registered in the name of such Purchaser (or its designee) representing that number of Preference Shares equal to resolve the dispute within 30 days difference between NF - N, where: N = number of Preference Shares purchased by such Purchaser (after giving effect to any adjustment pursuant to Section B.1); P = Per Share Price; B = absolute value of the Adjustment Basket; and NF = such engagement. The Independent AccountantPurchaser's determination Total Purchase Price divided by [P - B/12.86 million]. (e) If the Adjustment Basket is greater than zero, the Company at the direction of the Transaction Committee may use cash in an amount equal to B to repurchase Common Shares (other than any Conversion Shares or Warrant Shares) without regard to the restriction on repurchases set forth in Article VI of the Shareholders Agreement. (f) In addition to paragraph (e), if the Adjustment Basket is less than zero and in the event that a Triggering Event occurs, then, on the Second Applicable Date, the Company shall also issue and deliver to each Purchaser a number of Preference Shares equal to the difference between (A) such Purchaser's Total Purchase Price divided by an amount equal to [P - $1.50 - B/12.86 million] and (B) the Purchaser's Total Purchase Price divided by an amount equal to (P - $1.50). (g) On the fourth anniversary of the Closing Date, there shall be final and binding on a calculation of a further Adjustment Basket, taking into account ONLY the parties. Buyer or Seller, as following: (i) the case may be, shall make matters listed in clause (oriii) of the definition of Non-Core Assets, to the extent held not previously included in escrow, Buyer the first Adjustment Basket and Seller shall instruct the Escrow Agent to make(ii) appropriate payment to the other any actual losses arising out of any breach of the difference between representations set forth in Section D.3.h or D.3.k discovered after the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement second anniversary of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerClosing.

Appears in 1 contract

Samples: Subscription Agreement (Arch Capital Group LTD)

Final Adjustment. On or before Upon the date which is ninety (90) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as determination of the Closing Date Working Capital, Closing Date Indebtedness, Closing Date Lender Reserves and the Adjustment Amounts pursuant to this Section 2.4 and the final determination of Total Equity Value (the "date of such final determinations, the “Final Adjustment")Adjustment Date”): (i) Buyer agrees that Newco shall, together with such supporting documentation as Buyer may reasonably request, on the first date on which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes Newco makes a distribution pursuant to Article 4 of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days Newco LLC Agreement following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment Date (the “Initial Distribution Date”), distribute to or for the benefit of Seller an amount of distributions otherwise payable indirectly to Buyer through JV OpCo and JV (other than Special Tax Distributions (as defined in reasonable detail. If the dispute Newco LLC Agreement) and, unless otherwise elected by Buyer, distributions in respect of Preferred Return (as defined in the Newco LLC Agreement) to JV OpCo) pursuant to Article 4 of the Newco LLC Agreement, an amount equal to the Buyer Ownership Percentage of the amount, if any, by which, the Total Equity Value as finally determined pursuant to this Section 2.4 exceeds the Estimated Total Equity Value, provided, that, if Newco does not distribute such amount to or for the benefit of Seller in full on the Initial Distribution Date, any amount not distributed shall accrue interest at a rate of 7.50% per year from such date until the date such amount (together with any interest accrued thereon) is finally distributed to or for the benefit of Seller; (ii) Seller agrees that Newco shall, on the Initial Distribution Date, distribute to JV OpCo for the indirect benefit of Buyer an amount of distributions otherwise payable to Seller (other than Special Tax Distributions (as defined in the Newco LLC Agreement), unless otherwise elected by Seller, and distributions in respect of Preferred Return (as defined in the Newco LLC Agreement) to Seller), directly or indirectly, pursuant to Article 4 of the Newco LLC Agreement, an amount equal to the Buyer Ownership Percentage of the amount, if any, by which Total Equity Value as finally determined pursuant to this Section 2.4 is less than the Estimated Total Equity Value, provided, that, if Newco does not resolved by distribute such amount for the parties within 30 days indirect benefit of Buyer in full on the Initial Distribution Date, any amount not distributed shall accrue interest at a rate of 7.50% per year from the Initial Distribution Date until the date such amount (together with any interest accrued thereon) is finally distributed for the indirect benefit of receipt Buyer. Buyer, Seller and each of their respective Affiliates shall, for all Income Tax purposes, treat amounts distributed under Section 2.4(f)(i) to or for the benefit of Seller as having been (i) distributed by Newco to JV OpCo in accordance with Article 4 of the Newco LLC Agreement with respect to Newco interests owned indirectly by Buyer, (ii) distributed by JV OpCo to JV, (iii) distributed by JV to Buyer in accordance with the JV LLC Agreement, and (iv) then paid by Buyer to Seller as an adjustment of the Purchase Price hereunder. Buyer, Seller and each of their respective Affiliates shall, for all U.S. federal, state and local income tax purposes, treat amounts distributed under Section 2.4(f)(ii) to JV OpCo for the indirect benefit of Buyer as having been (i) distributed by Newco to Seller, directly or indirectly, with respect to Newco Interests not owned by JV OpCo in accordance with Article 4 of the Newco LLC Agreement, and (ii) then paid by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other an adjustment of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerPurchase Price hereunder.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Colony NorthStar, Inc.)

Final Adjustment. On or before the date which is ninety (90a) ---------------- days The Adjustment Basket, as defined on SCHEDULE B, shall be determined as soon as practicable after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated as second anniversary of the Closing Date or such earlier date as the Purchasers request and the Transaction Committee agrees, which agreement will not be unreasonably withheld (the "Final AdjustmentTEST DATE"), together with such supporting documentation as Buyer may reasonably request, which . The Company shall evidence engage its independent public accountants to prepare and deliver a report to the Transaction Committee and the Purchasers setting forth in reasonable detail the nature calculation of the Adjustment Basket (the "ADJUSTMENT BASKET REPORT"). (b) The Company shall provide such independent public accountants with full access to its books and extent of each adjustment. For records for the purposes of preparing the Final AdjustmentAdjustment Basket Report. Such accountants shall keep the Transaction Committee and the Purchasers informed as to the progress of the Adjustment Basket Report, Tentative Subscribers who and the Transaction Committee and the Purchasers shall have paid the right to participate and comment upon the Adjustment Basket Report. Any reviews pursuant to paragraph (c) below shall also be subject to the provisions of this paragraph. (c) After receipt of the Adjustment Basket Report, the Transaction Committee and the Purchasers shall have the right to make a full monthly xxxx generated review of the Adjustment Basket Report including, but not limited to, access by such professionals as Purchasers may deem necessary to all of the workpapers and reports prepared by the independent public accountants in connection with such Adjustment Basket Report. The Transaction Committee may object to the ordinary course of business Adjustment Basket Report by giving written notice to the Purchasers, and the Purchasers (acting collectively) may object to the Adjustment Basket Report by giving written notice to the Transaction Committee, in each case, within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written date on which the Adjustment Basket Report is delivered. Any such notice describing in reasonable detail shall state the dispute, together with Buyer's determination as to basis of the Final Adjustment objections in reasonable detail. The Transaction Committee and the Purchasers shall then endeavor in good faith to resolve the dispute as soon as possible. If the dispute is not resolved by within 10 days after receipt of the parties objection, within five days thereafter, the Transaction Committee and the Purchasers shall mutually agree on a firm of independent accountants, an independent actuary and/or an independent pricing service to review the Adjustment Basket Report or one or more components thereof, who shall complete such reviews within 30 days from of appointment. Based upon such independent reviews, the independent accountants referred to in the preceding sentence shall select either the adjusted basket report recommended by the Transaction Committee or that recommended by the Purchasers, whichever is closer to the independent review, and the adjusted basket report so selected shall be dispositive. (d) If the Adjustment Basket is less than zero, within five business days after the last date on which the Adjustment Basket Report may be objected to or the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer on which all reviews following any such objection have been completed (the "Independent AccountantSECOND APPLICABLE DATE"), the Company shall issue and deliver to each Purchaser one or more certificates registered in the name of such Purchaser (or its designee) representing that number of Preference Shares equal to resolve the dispute within 30 days difference between NF - N, where: N = number of Preference Shares purchased by such Purchaser (after giving effect to any adjustment pursuant to Section B.1); P = Per Share Price; B = absolute value of the Adjustment Basket; and NF = such engagement. The Independent AccountantPurchaser's determination Total Purchase Price divided by [P - B/12.86 million]. (e) If the Adjustment Basket is greater than zero, the Company at the direction of the Transaction Committee may use cash in an amount equal to B to repurchase Common Shares (other than any Conversion Shares or Warrant Shares) without regard to the restriction on repurchases set forth in Article VI of the Shareholders Agreement. (f) In addition to paragraph (e), if the Adjustment Basket is less than zero and in the event that the class B warrants vest, then, on the Second Applicable Date, the Company shall also issue and deliver to each Purchaser (as a further adjustment for the vesting of the class B warrants) a number of Preference Shares equal to the difference between (A) such Purchaser's Total Purchase Price divided by an amount equal to [P - $1.50 - B/12.86 million] and (B) the Purchaser's Total Purchase Price divided by an amount equal to (P - $1.50). (g) On the fourth anniversary of the Closing Date, there shall be final and binding on a calculation of a further Adjustment Basket, taking into account ONLY the parties. Buyer or Seller, as following: (i) the case may be, shall make matters listed in clause (oriii) of the definition of Non-Core Assets, to the extent held not previously included in escrow, Buyer the first Adjustment Basket and Seller shall instruct the Escrow Agent to make(ii) appropriate payment to the other any actual losses arising out of any breach of the difference between representations set forth in Section D.3.h or D.3.k discovered after the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement second anniversary of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the BuyerClosing.

Appears in 1 contract

Samples: Subscription Agreement (Arch Capital Group LTD)

Final Adjustment. On or before the date which is ninety Within thirty (9030) ---------------- days after Purchaser receives the Preliminary Statement from Seller, Purchaser shall have the right, but not the obligation, to cause to be prepared and delivered to Seller a statement (the “Final Statement”) containing Purchaser’s determination of the Inter-Company Liability as of the day prior to the Closing Date, Seller Date in accordance with this Section 1.03. The Final Statement shall deliver to Buyer also include a final calculation of the adjustments calculated corresponding adjustment to the Purchase Price required by the final determination of the Inter-Company Liability as of the day prior to the Closing Date (the "Final Adjustment"Reconciliation Payment”), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent well as a determination of each adjustment. For the purposes of whether the Final AdjustmentReconciliation Payment is owed by Purchaser to Seller or vice versa pursuant to Section 1.03(a). If Purchaser fails to deliver such Final Statement within such thirty (30) day period, Tentative Subscribers who have paid a full monthly xxxx generated in then the ordinary course of business within 30 days following Closing will Preliminary Statement shall be included in deemed to be the final calculation of Equivalent Basic Subscribers. “Final Statement.” Seller shall cooperate with Buyer and provide give Purchaser reasonable access to the necessary personnel books, records and records other materials of Seller and deliver its Affiliates (other than the Acquired Companies) to Buyer copies the extent related to Purchaser’s review of such records as Buyer may reasonably request, to review the Preliminary Statement or Purchaser’s preparation of the Final AdjustmentStatement. Should Buyer dispute Seller's The Final Adjustment, Buyer Statement and the corresponding calculations of the Final Reconciliation Payment and the party owing the same shall promptly, but in no event later than 30 be final and binding upon the parties to this Agreement unless Seller gives written notice of disagreement therewith (a “Dispute Notice”) to Purchaser within thirty (30) days after receipt of the Final AdjustmentStatement, deliver to specifying the specific line items in dispute and a reasonably detailed explanation of the nature and extent of such disagreement. If Purchaser and Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to mutually agree upon the Final Adjustment in reasonable detail. If Statement, as may be modified by a Dispute Notice, and the dispute is not resolved by corresponding calculations of the parties Final Reconciliation Payment and the party owing the same within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer thirty (the "Independent Accountant"30) to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination Purchaser’s receipt of any Dispute Notice, that agreement shall be final and binding on upon the partiesparties for the purposes of this Agreement. Buyer or SellerIf Purchaser and Seller are unable to resolve any matters raised in a Dispute Notice within such period, as the case may be, specific items in dispute shall make (or, be referred for final determination to the extent held Los Angeles office of PricewaterhouseCoopers, or if they are for any reason unable or unwilling to accept such engagement, then to a mutually-agreeable, nationally-recognized accounting firm that is not the principal accounting firm regularly engaged by Purchaser or Seller (the “Accounting Firm”) whose scope of review shall be limited to whether the disputed items were prepared in escrow, Buyer a manner consistent with this Section 1.03 and Seller shall instruct the Escrow Agent to make) appropriate payment to the other whether there were errors of the difference between fact or mathematical errors in the Final Adjustment amount Statement, and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute that disagreement and the calculations by the parties; or (c) the receipt Accounting Firm of the Independent Accountant's Final Reconciliation Payment and the party owing the same shall be final determination, and binding upon the parties for purposes of this Agreement. The fees and disbursements of the Accounting Firm shall be paid by Purchaser and Seller as the case may be. All fees and costs Accounting Firm shall determine based upon its assessment of the Independent Accountant shall be borne relative merits of the positions taken by the non-prevailing party as determined by the Independent Accountant; providedeach in any disagreement presented to it and, however, that if the Independent Accountant Accounting Firm does not make such a determination, Seller shall pay 50% and Purchaser shall pay 50%. The Final Reconciliation Payment shall be payable, without interest, by wire transfer of immediately available funds to a bank account designated in writing by the costs receiving party at least two (2) Business Days prior to the due date thereof and expenses shall be paid within five (5) Business Days after the determination of the Independent Accountant shall be borne equally by the Seller and the Buyeramount due.

Appears in 1 contract

Samples: Purchase Agreement (Univision Communications Inc)

Final Adjustment. On or before the date which is ninety (90a) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation of the adjustments calculated As soon as of the Closing Date (the "Final Adjustment"), together with such supporting documentation as Buyer may reasonably request, which shall evidence in reasonable detail the nature and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptlypracticable, but in no event later than 30 60 days after following the Closing Date, Sellers shall determine the Business' Closing Date Working Capital and Buyer shall afford Sellers, or its representatives reasonable access to the books, records and personnel of the Business for the purpose of making such determination. Within such 60- day period Sellers shall deliver to Buyer a written statement (the "Closing Date Working Capital Statement") setting forth its determination of the Closing Date Working Capital. If Buyer objects to the Closing Date Working Capital Statement, such objection shall be made in writing and delivered to Sellers within 15 days following Buyer's receipt of the Final AdjustmentClosing Date Working Capital Statement, deliver failing which such statement shall be deemed to Seller written notice describing in reasonable detail the dispute, together with have been accepted by Buyer. Any objections that are not resolved between Sellers and Buyer within 15 days following Sellers' receipt of Buyer's determination as statement of objections shall be submitted to the Final Adjustment in reasonable detail. If the dispute is not resolved binding arbitration to be conducted by the parties within 30 days from the date a representative of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or LLP, which shall represent Sellers, a representative of Wilson, Price, Xxxxxxxx, Xxxxxxxxxxx & Xxxxxxxxxxx, P.C., which shall represent Buyer, and another "big six" nationally recognized accounting firm mutually acceptable to Seller Buyer and Sellers and selected within 30 days of the date of the submission of the statement of objections. The fees of each accounting firm representative shall be paid by the party that it represents, and responsibility for payment of the fees of the third accounting firm shall be divided equally between Buyer and Sellers. Such arbitrating body shall make its determination (which determination shall be made by majority vote) within 90 days of the date the objections are first submitted for arbitration, and such determination shall be final, non-appealable and binding upon the parties. (b) If the Closing Date Working Capital determined pursuant to Section 2.9(a) exceeds the Estimated Working Capital, then Buyer shall, within five business days of the earlier of the date that Buyer accepts the Closing Date Working Capital Statement or any disputes with respect to the Closing Date Working Capital Statement have otherwise been resolved (the "Independent AccountantAcceptance Date"), pay Sellers in cash the amount of such excess. If the Closing Date Working Capital determined pursuant to Section 2.9(a) is less than the Estimated Working Capital, Sellers shall, within five business days of the Acceptance Date, pay Buyer in cash the amount of such deficiency. Interest shall accrue and be due with respect to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment any payments due by one party to the other hereunder at the rate of 7% per annum beginning on the difference between 91st day following the Final Adjustment amount Closing Date, and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following any such payments (aincluding any interest accrued thereon) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne made by the non-prevailing party as determined bank wire transfer of immediately available funds to an account specified in writing by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyerpayee to payor.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Piccadilly Cafeterias Inc)

Final Adjustment. On or before (i) Seller and Primary Purchaser shall use reasonable efforts to accurately estimate the date which is ninety apportionments of Net Current Assets of each Partnership Entity as of the Proration Date and hereby agree to re-prorate the items described in Section 7.1(a) as of the Proration Date, based on the actual financial data (90) ---------------- days after including data as to the Closing Datepayment of receivables that were prorated), in accordance with this Section 7.1(c). Not later than May 30, 2018, Seller shall deliver provide to Buyer Primary Purchaser a proposed final calculation statement of Net Current Assets of each of the adjustments calculated Partnership Entities as of the Closing Proration Date (the "each, a “Proposed Final Adjustment"Net Current Assets Statement”), together with supporting documentation. Such Proposed Final Net Current Assets Statement shall take into account all relevant financial data available through such supporting documentation date (taking into account settlements made in accordance with Section 7.1(b), and making any necessary corrections or revisions to the applicable Preliminary Net Current Assets Statement with respect to any Net Current Assets items). Such Proposed Final Net Current Assets Statement shall include a written statement in reasonable detail of any changes to the applicable Preliminary Net Current Assets Statement (or a statement that Seller is not proposing any such changes). Seller shall provide Primary Purchaser any information reasonably requested by Primary Purchaser in order to confirm any Proposed Final Net Current Assets Statement. In the event Primary Purchaser does not agree with any Proposed Final Net Current Assets Statement and Seller and Primary Purchaser cannot agree in good faith to the calculation of any Net Current Assets items set forth in such Proposed Final Net Current Assets Statement (or otherwise proposed by Primary Purchaser), within thirty (30) days after delivery by Seller of such Proposed Final Net Current Assets Statement, the items not agreed to shall be resolved by an independent accounting firm (which firm shall have no conflict with any party (other than Escrow Agent) and shall not have performed any work for any of Seller or Purchasers within the five (5) years preceding the selection of such firm) selected by the American Arbitration Association (the “Accountants”). Within ten (10) days after selection of the Accountants, Seller and Primary Purchaser shall each submit to the Accountants the dollar amount of its proposed adjustment, if any, to Seller’s Net Current Assets as Buyer may reasonably requestreflected on the disputed Proposed Final Net Current Assets Statement, and the Accountants shall make their determination with respect to the items submitted to them within thirty (30) days of the appointment of such Accountants pursuant to this Section 7.1(c)(i). The fees and expenses of the Accountants shall be paid by Seller if Seller’s proposed final adjustment is furthest in dollar amount from the final determination of the Accountants or by Primary Purchaser if Primary Purchaser’s proposed final adjustment is furthest in dollar amount from the final determination of the Accountants; provided that if the dollar amount of the proposed adjustment of each of the parties is within 10% of the final determination of the Accountants, then Seller shall pay 50% of the fees and expenses of the Accountants and the Purchasers shall pay the other 50% of the fees and expenses of the Accountants. (ii) Seller and Primary Purchaser, promptly after all Seller’s Net Current Assets items have been agreed to or resolved pursuant to Section 7.1(c)(i), shall prepare a final statement for each Partnership Entity reflecting all Net Current Assets items as of the Proration Date, taking into account any settlements made prior to the Closing in accordance with Section 7.1(b) and any further adjustments in accordance with this Section 7.1(c) either agreed to by Seller and Primary Purchaser or resolved by the Accountants (each, a “Final Net Current Assets Statement”), which shall evidence include a net adjustment due in reasonable detail accordance with the nature provisions of this Section 7.1(c)(ii) and extent of each adjustment. For the purposes of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller execute and deliver to Buyer copies the other an original of each Final Net Current Assets Statement. If either Seller or Primary Purchaser refuses to prepare, execute or deliver a Final Net Current Assets Statement, then the other shall have the right to cause the Accountants to prepare such records as Buyer may reasonably requestFinal Net Current Assets Statement, to review which shall be binding upon all of the parties. All Net Current Assets items set forth in the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant") to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination Net Current Assets Statements shall be final and binding on upon all of the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment to the other of the difference between the Final Adjustment amount and the adjustment amount paid at Closing pursuant to the Initial Adjustment Certificate within three business days following (a) the agreement of the parties as to the Final Adjustment, (b) the resolution of any dispute by the parties; or (c) the receipt of the Independent Accountant's final determination, as the case may be. All fees and costs of the Independent Accountant shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyer.

Appears in 1 contract

Samples: Purchase, Sale and Escrow Agreement (Washington Prime Group Inc.)

Final Adjustment. On or before Once the date which is ninety (90) ---------------- days after the Closing Date, Seller shall deliver to Buyer a final calculation dollar amount of the adjustments calculated Final Working Capital has been finally determined, as described in Section 2.3(d)(ii), the Purchase Price shall be recalculated pursuant to the formula contained in Section 2.3(d)(i) using the Final Working Capital as determined pursuant to Section 2.3(d)(ii) in lieu of the Closing Date Estimated Working Capital used in the Initial Adjustment. If the Purchase Price as adjusted pursuant to this paragraph 2.3(f) (the "Final Adjustment")) is greater than the Purchase Price as adjusted pursuant to the Initial Adjustment, together with the Buyer shall pay such supporting documentation as excess to the Seller in cash and Seller and Buyer may reasonably request, which shall evidence promptly (but in reasonable detail any event no later than the nature and extent of each adjustment. For third Business Day following the purposes determination of the Final Adjustment, Tentative Subscribers who have paid a full monthly xxxx generated in the ordinary course of business within 30 days following Closing will be included in the final calculation of Equivalent Basic Subscribers. Seller shall cooperate with Buyer and provide reasonable access to the necessary personnel and records of Seller and deliver to Buyer copies of such records as Buyer may reasonably request, to review the Final Adjustment. Should Buyer dispute Seller's Final Adjustment, Buyer shall promptly, but in no event later than 30 days after receipt of the Final Adjustment, deliver to Seller written notice describing in reasonable detail the dispute, together with Buyer's determination as to the Final Adjustment in reasonable detail. If the dispute is not resolved by the parties within 30 days from the date of receipt by Seller of written notice from Buyer, the parties agree to engage Ernst & Young or another "big six" accounting firm mutually acceptable to Seller and Buyer (the "Independent Accountant"Working Capital) to resolve the dispute within 30 days after such engagement. The Independent Accountant's determination shall be final and binding on the parties. Buyer or Seller, as the case may be, shall make (or, to the extent held in escrow, Buyer and Seller shall instruct the Escrow Agent to make) appropriate payment release the Working Capital Holdback Amount to Seller pursuant to the other terms of the difference between Closing Escrow Agreement. If the Purchase Price as adjusted pursuant to the Final Adjustment amount and is less than the adjustment amount paid at Closing Purchase Price as adjusted pursuant to the Initial Adjustment Certificate within three business days and the amount of such excess is less than the Working Capital Holdback Amount, Seller and Buyer shall promptly (but in any event no later than the third Business Day following (a) the agreement determination of the parties Final Working Capital) instruct the Escrow Agent to release the amount of such excess to Buyer and to release the remaining portion of the Working Capital Holdback Amount to Seller in accordance with the terms of the Closing Escrow Agreement. If the Purchase Price as adjusted pursuant to the Final AdjustmentAdjustment is less than the Purchase Price as adjusted pursuant to the Initial Adjustment and the Amount of such excess is more than the Working Capital Holdback Amount, Seller and Buyer shall promptly (b) but in any event no later than the resolution of any dispute by third Business Day following the parties; or (c) the receipt determination of the Independent Accountant's final determination, as Final Working Capital) instruct the case may be. All fees and costs Escrow Agent to release the Working Capital Holdback Amount to Buyer in accordance with the terms of the Independent Accountant Closing Escrow Agreement and Seller shall be borne by the non-prevailing party as determined by the Independent Accountant; provided, however, that if the Independent Accountant does not make such a determination, the costs and expenses of the Independent Accountant shall be borne equally by the Seller and the Buyer.pay the

Appears in 1 contract

Samples: Asset Purchase Agreement (Atrium Companies Inc)