Final Determination of Purchase Price. (i) CSL shall deliver to Buyer at least six Business Days prior to the Closing a closing statement (the “Estimated Closing Purchase Price Certificate”) setting forth the calculation of CSL’s good faith estimate of the Purchase Price (the “CSL Price Estimate”), including a detailed presentation of the calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using accounting methods, policies, practices, procedures, classifications and estimation methodologies as set forth on Schedule 2.4(a) (“Accounting Procedures”). Buyer shall deliver to CSL in writing no later than three Business Days after its receipt of Estimated Closing Purchase Price Certificate a notice (an “Estimated Purchase Price Objection Notice”) reasonably describing (giving consideration to the time period and information available to Buyer for such review) any good faith objections it may have to the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate and its reasons therefor together with the calculation of Buyer’s good faith estimate of the Purchase Price (the “Buyer Price Estimate”), including a detailed presentation of its calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using the same Accounting Procedures as were used to determine the Reference Working Capital, as set forth on Schedule 2.4(a). (ii) If Buyer fails to deliver to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimated Closing Purchase Price Certificate, then the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate shall be the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b). (iii) If Buyer delivers to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimate Closing Purchase Price Certificate, then CSL and Buyer shall work together in good faith to resolve any disagreements relating to the calculation of the Estimated Purchase Price set forth on the Estimated Closing Price Certificate. Each of CSL and Buyer shall also have the opportunity to revise their respective Price Estimates, including any revisions necessary to bring that difference to less than U.S. $10,000,000, and no such revisions shall in any event constitute an admission against interest, admission that the CSL Price Estimate or Buyer Price Estimate delivered in accordance with Section 2.4(a)(i) was not calculated in good faith, or estoppel or waiver of any rights, arguments, positions taken in such process, nor shall any such revision limit the positions that may be taken by the parties in the final determination of Purchase Price in accordance with Section 2.4(b). If CSL and Buyer are unable to resolve any disputes as to the calculations of the Purchase Price as set forth on the Estimated Closing Purchase Price Certificate and Estimated Purchase Price Objection Notice, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be determined as follows: (A) if the difference between the CSL Price Estimate and the Buyer Price Estimate is U.S. $10,000,000 or less, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the average of the CSL Price Estimate and Buyer Price Estimate; and (B) if the difference between the CSL Price Estimate and the Buyer Price Estimate is greater than U.S. $10,000,000, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the lower of the CSL Price Estimate and the Buyer Price Estimate, and an amount equal to the difference between the CSL Price Estimate and the Buyer Price Estimate shall be deposited by Buyer into an escrow account in accordance with Section 2.5. (b) As promptly as practicable, but in any event within 60 days following the Closing Date, CSL shall prepare (in consultation with Xxxxxx Xxxxxxx, if he shall then be employed by the Operating Companies or another designee of Buyer if Xxxxxx Xxxxxxx is not then employed by the Operating Companies) and deliver to Buyer a Closing Date Balance Sheet and CSL’s certificate, derived from the Closing Date Balance Sheet, setting forth in reasonable detail the calculation of the Closing Net Cash and the Closing Net Working Capital and the difference, if any, between the Purchase Price as determined in accordance with the Closing Date Balance Sheet and the Closing Date Purchase Price Amount delivered in accordance with Section 2.3(b) (the “Closing Purchase Price Adjustment Certificate”). The Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate shall be prepared in accordance with the Accounting Procedures, and shall be delivered together with a report thereon of Ernst & Young (“CSL’s Accountants”) that such statement fairly presents in all material respects the Closing Net Cash and the Closing Net Working Capital of the Companies determined in conformity with such Accounting Procedures. Notwithstanding anything to the contrary set forth herein, in all events the same Accounting Procedures shall be used to calculate both the Reference Working Capital and the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and if for any reason the Accounting Procedures used to calculate the Closing Net Working Capital as finally determined in accordance with this Section 2.4 are required by GAAP applied on a consistent basis to differ from the Accounting Procedures that were used to calculate the Reference Working Capital in accordance with the procedures set forth on Schedule 2.4(a), then the Reference Working Capital shall be re-calculated using the same Accounting Procedures as are used to determine the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and the adjustment to the Purchase Price contemplated by Section 2.1(b)(ii) shall be calculated based on the Reference Working Capital as so recalculated; provided, however, that the Sellers shall not realize an increase in the Purchase Price as a result of any failure properly to apply the Accounting Procedures, including GAAP applied on a consistent basis, in originally calculating the Reference Working Capital. In connection with the preparation of the Closing Purchase Price Adjustment Certificate, Buyer shall and shall cause the Companies to provide the Sellers and the Sellers’ authorized representatives with full access to the books, records, facilities and employees of the Company and to cooperate fully with the Sellers and the Sellers’ authorized representatives, including providing on a timely basis all information necessary or useful in preparing the Closing Purchase Price Adjustment Certificate and require Company employees to assist the Sellers and the Sellers’ authorized representatives in the preparation of the Closing Purchase Price Adjustment Certificate. (c) CSL shall afford Buyer timely access to all supporting documents and work papers used in the preparation of the Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate and the calculation of the Closing Net Cash amounts and the Closing Net Working Capital. (d) Buyer may dispute any amounts reflected on the Closing Purchase Price Adjustment Certificate or the calculation of Closing Net Cash or the Closing Net Working Capital, but only on the basis of its belief that the amounts reflected on the Closing Purchase Price Adjustment Certificate were not arrived at in accordance with this Agreement or resulted from a mistake of fact, failure to comply with the Accounting Procedures, including GAAP applied on a consistent basis, or other inaccuracy contained in the Closing Date Balance Sheet or elsewhere; provided, however, that Buyer shall have notified CSL in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within 60 days of CSL’s delivery to Buyer of the Closing Purchase Price Adjustment Certificate. In the event of such a dispute, CSL and Buyer shall work together in good faith to resolve any disagreements. If CSL and Buyer are unable to reach a resolution within 30 days after receipt by CSL of Buyer’s written notice of dispute, CSL and Buyer shall submit the items then remaining in dispute for resolution to an independent accounting firm of international reputation mutually acceptable to them) (the “Independent Accounting Firm”), which shall, within 30 days after such submission, determine and report to the CSL and Buyer upon such remaining disputed items, and such report shall be final and binding on all of the parties. The fees and disbursements of the Independent Accounting Firm shall be allocated evenly between CSL and Buyer. In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators. (e) The Closing Purchase Price Adjustment Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) shall be deemed final for the purposes of this Section 2.4 upon the earliest of (i) the failure of Buyer to notify CSL of a dispute within 60 days of CSL’s delivery of the Closing Purchase Price Certificate to Buyer, (ii) the resolution of all disputes pursuant to Section 2.4(d) by Buyer and CSL, (iii) the resolution of all disputes, pursuant to Section 2.4(d) by the Buyer’s Accountants and CSL’s Accountants, and (iv) the resolution of all disputes pursuant to Section 2.4(d) by the Independent Accounting Firm. Buyer will inform Deloitte & Touche of the final Purchase Price promptly after its determination, and in no event later than five Business Days after it is deemed final pursuant to this Section 2.4(e). (f) If the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is less than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), (i) Sellers shall pay to Buyer an amount equal to the absolute value of such difference and (ii) Buyer shall be entitled to receive all amounts held in the Escrow Account. In the event that the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is more than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), then Buyer shall pay to CSL, on behalf of all of the Sellers, the absolute value of such difference (and Buyer may use amounts held in the Escrow Account, if any, for such purpose). Any payment made in accordance with this Section 2.4(f), and any payment made in accordance with Article VIII, Article IX or any other indemnification provision contained herein, shall, to the extent not prohibited by applicable Law, be deemed for all tax, accounting and other reporting purposes as an adjustment to the Purchase Price. (g) Any payment made pursuant to Section 2.4(f) shall be made (i) within ten (10) Business Days after the Closing Purchase Price Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) are deemed final in accordance with Section 2.4(e), and (ii) by causing such payments to be credited in immediately available funds to such bank account or accounts as may be designated by the receiving party in accordance with wire transfer instructions delivered in writing not less than two Business Days prior to transfer (and in the case of payments to be made to CSL, in accordance with the instructions used to deliver the Closing Date Purchase Price Amount). Other than payments made from the Escrow Account (which shall bear interest as set forth in the Escrow Agreement), any payment to be made pursuant to Section 2.4(f) shall bear interest from and including the Closing Date but excluding the date of payment at a rate of 5 1/4%. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is due.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Sigma Aldrich Corp)
Final Determination of Purchase Price. (ia) CSL Within 60 days after the Closing, Buyer shall prepare and deliver to Buyer at least six Business Days prior to Stockholders’ Representative a final unaudited consolidated balance sheet for the Company as of the Closing a closing statement Date prepared in accordance with the Accounting Procedures (the “Estimated Closing Balance Sheet”). The Closing Balance Sheet shall be accompanied by Buyer’s certificate (the “Purchase Price Adjustment Certificate”) setting forth Buyer’s reasonably detailed calculations, derived from the calculation of CSL’s good faith estimate Closing Balance Sheet, of the Base Purchase Price (and each component of adjustments to the “CSL Base Purchase Price Estimate”in accordance with Section 2.5(b), including a detailed presentation of and the differences, if any, between such calculations and the Estimated Purchase Price. Stockholders’ Representative may dispute amounts reflected on the Closing Balance Sheet and the calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using accounting methods, policies, practices, procedures, classifications and estimation methodologies as set forth on Schedule 2.4(a) (“Accounting Procedures”). Buyer shall deliver to CSL in writing no later than three Business Days after its receipt of Estimated Closing Purchase Price Certificate a notice (an “Estimated Purchase Price Objection Notice”) reasonably describing (giving consideration to the time period and information available to Buyer for such review) any good faith objections it may have to the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Adjustment Certificate and its reasons therefor together with by notifying Buyer in writing on or before the calculation of Buyer30th day following Stockholders’ Representative’s good faith estimate of the Purchase Price (the “Buyer Price Estimate”), including a detailed presentation of its calculations of the items comprising Closing Net Cash and Closing Net Working Capitalreceipt thereof, which calculations notice shall be prepared using specify each item in dispute and the same Accounting Procedures as were used to determine the Reference Working Capitalamount thereof, as and shall set forth on Schedule 2.4(a).
(ii) If in reasonable detail the basis for each such dispute. In the event Stockholders’ Representative so notifies Buyer fails to deliver to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimated Closing Purchase Price Certificateany such dispute, then the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate shall be the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b).
(iii) If Buyer delivers to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimate Closing Purchase Price Certificate, then CSL Stockholders’ Representative and Buyer shall work together in good faith to resolve any disagreements relating to such dispute. In the calculation of the Estimated Purchase Price set forth on the Estimated Closing Price Certificate. Each of CSL event Buyer and Buyer shall also have the opportunity to revise their respective Price Estimates, including any revisions necessary to bring that difference to less than U.S. $10,000,000, and no such revisions shall in any event constitute an admission against interest, admission that the CSL Price Estimate or Buyer Price Estimate delivered in accordance with Section 2.4(a)(i) was not calculated in good faith, or estoppel or waiver of any rights, arguments, positions taken in such process, nor shall any such revision limit the positions that may be taken by the parties in the final determination of Purchase Price in accordance with Section 2.4(b). If CSL and Buyer Stockholders’ Representative are unable to resolve such dispute within 30 days following Stockholders’ Representative notifying Buyer of a dispute, Buyer or Stockholders’ Representative shall submit a list of the disputed amounts and any disputes as related issues to the calculations of the Purchase Price other and to Xxxxx Xxxxxxxx LLP (who will serve as set forth experts and not as arbitrators on the Estimated Closing Purchase Price Certificate and Estimated Purchase Price Objection Notice, then the “Closing Date Purchase Price Amount” disputes submitted for purposes of Section 2.3(b) shall be determined as follows:
(A) if the difference between the CSL Price Estimate and the Buyer Price Estimate is U.S. $10,000,000 or less, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the average of the CSL Price Estimate and Buyer Price Estimate; and
(B) if the difference between the CSL Price Estimate and the Buyer Price Estimate is greater than U.S. $10,000,000, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the lower of the CSL Price Estimate and the Buyer Price Estimate, and an amount equal to the difference between the CSL Price Estimate and the Buyer Price Estimate shall be deposited by Buyer into an escrow account in accordance with Section 2.5.
(b) As promptly as practicable, but in any event within 60 days following the Closing Date, CSL shall prepare (in consultation with Xxxxxx Xxxxxxx, if he shall then be employed by the Operating Companies or another designee of Buyer if Xxxxxx Xxxxxxx is not then employed by the Operating Companies) and deliver to Buyer a Closing Date Balance Sheet and CSL’s certificate, derived from the Closing Date Balance Sheet, setting forth in reasonable detail the calculation of the Closing Net Cash and the Closing Net Working Capital and the difference, if any, between the Purchase Price as determined in accordance with the Closing Date Balance Sheet and the Closing Date Purchase Price Amount delivered in accordance with Section 2.3(bresolution) (the “Closing Purchase Price Adjustment CertificateAccountants”) for resolution. Buyer and Stockholders’ Representative shall request that the disputed issues be resolved as promptly as possible by the Accountants. The decision of the Accountants shall be final and binding as to the matter(s) submitted to the Accountants for resolution. The costs of the Accountants shall be borne by and apportioned among Buyer and the Stockholders, severally (in accordance with their respective Pro Rata Shares), as determined by the Accountants based upon the Accountants’ determination of the relative merits of the parties claims giving rise to any dispute. The Closing Date Balance Sheet and Sheet, the Closing Purchase Price Adjustment Certificate shall be prepared in accordance with the Accounting Procedures, and shall be delivered together with a report thereon of Ernst & Young (“CSL’s Accountants”) that such statement fairly presents in all material respects the Closing Net Cash and the Closing Net Working Capital of the Companies determined in conformity with such Accounting Procedures. Notwithstanding anything to the contrary set forth herein, in all events the same Accounting Procedures shall be used to calculate both the Reference Working Capital and the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and if for any reason the Accounting Procedures used to calculate the Closing Net Working Capital as finally determined in accordance with this Section 2.4 are required by GAAP applied on a consistent basis to differ from the Accounting Procedures that were used to calculate the Reference Working Capital in accordance with the procedures set forth on Schedule 2.4(a), then the Reference Working Capital shall be re-calculated using the same Accounting Procedures as are used to determine the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and the adjustment to the Purchase Price contemplated by Section 2.1(b)(ii) shall be calculated based on the Reference Working Capital as so recalculated; provided, however, that the Sellers shall not realize an increase in the Purchase Price as a result of any failure properly to apply the Accounting Procedures, including GAAP applied on a consistent basis, in originally calculating the Reference Working Capital. In connection with the preparation of the Closing Purchase Price Adjustment Certificate, Buyer shall and shall cause the Companies to provide the Sellers and the Sellers’ authorized representatives with full access to the books, records, facilities and employees of the Company and to cooperate fully with the Sellers and the Sellers’ authorized representatives, including providing on a timely basis all information necessary or useful in preparing the Closing Purchase Price Adjustment Certificate and require Company employees to assist the Sellers and the Sellers’ authorized representatives in the preparation of the Closing Purchase Price Adjustment Certificate.
(c) CSL shall afford Buyer timely access to all supporting documents and work papers used in the preparation of the Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate and the calculation of the Closing Net Cash amounts and adjustments to the Base Purchase Price in accordance with Section 2.5(b) shall be deemed final for all purposes hereof upon the earliest to occur of (i) receipt by Buyer of a written notice from Stockholders’ Representative stating that Stockholders’ Representative agrees with Buyer’s calculations set forth thereon, (ii) the failure by Stockholders’ Representative to notify Buyer of a dispute with respect thereto in accordance with this Section 2.7(a) within 30 days of Stockholders’ Representative’s receipt from Buyer of the Closing Net Working Capital.
(d) Buyer may dispute any amounts reflected on the Closing Balance Sheet and Purchase Price Adjustment Certificate or and (iii) the calculation resolution of Closing Net Cash or the Closing Net Working Capital, but only on the basis of its belief that the amounts reflected on the Closing Purchase Price Adjustment Certificate were not arrived at all disputes arising in accordance with this Agreement Section 2.7(a) either by Buyer and Stockholders’ Representative or resulted from a mistake of factthe Accountants, failure to comply with the Accounting Procedures, including GAAP applied on a consistent basis, or other inaccuracy contained in which case the Closing Date Balance Sheet or elsewhere; provided, however, that Buyer shall have notified CSL in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detailSheet, the basis for such dispute, within 60 days of CSL’s delivery to Buyer of the Closing Purchase Price Adjustment Certificate. In the event of such a dispute, CSL and Buyer shall work together in good faith to resolve any disagreements. If CSL and Buyer are unable to reach a resolution within 30 days after receipt by CSL of Buyer’s written notice of dispute, CSL and Buyer shall submit the items then remaining in dispute for resolution to an independent accounting firm of international reputation mutually acceptable to them) (the “Independent Accounting Firm”), which shall, within 30 days after such submission, determine and report to the CSL and Buyer upon such remaining disputed items, and such report shall be final and binding on all of the parties. The fees and disbursements of the Independent Accounting Firm shall be allocated evenly between CSL and Buyer. In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators.
(e) The Closing Purchase Price Adjustment Certificate and the calculation of the adjustments to the Base Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) shall be deemed final for the purposes of this Section 2.4 upon the earliest of (i) the failure of Buyer to notify CSL of a dispute within 60 days of CSL’s delivery of the Closing Purchase Price Certificate to Buyer, (ii) the resolution of all disputes pursuant to Section 2.4(d) by Buyer and CSL, (iii) the resolution of all disputes, pursuant to Section 2.4(d) by the Buyer’s Accountants and CSL’s Accountants, and (iv) the resolution of all disputes pursuant to Section 2.4(d) by the Independent Accounting Firm. Buyer will inform Deloitte & Touche of the final Purchase Price promptly after its determination, and in no event later than five Business Days after it is deemed final pursuant to this Section 2.4(e).
(f) If the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is less than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), (i2.5(b) Sellers shall pay to Buyer an amount equal to the absolute value of such difference and (ii) Buyer shall be entitled to receive that determined in accordance with such resolution of all amounts held in such disputes (the Escrow Account. In the event that the final calculation of the Base Purchase Price pursuant to Section 2.4(b)-(e) is more than the Closing Date Purchase Price Amount paid to Sellers Price, as adjusted in accordance with Section 2.3(b), then Buyer shall pay to CSL, on behalf of all of the Sellers, the absolute value of such difference (and Buyer may use amounts held in the Escrow Account, if any, for such purpose). Any payment made in accordance with this Section 2.4(f), and any payment made in accordance with Article VIII, Article IX or any other indemnification provision contained herein, shall, to the extent not prohibited by applicable Law, be deemed for all tax, accounting and other reporting purposes as an adjustment to the Purchase Price.
(g) Any payment made pursuant to Section 2.4(f) shall be made (i) within ten (10) Business Days after the Closing Purchase Price Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i2.5(b) and (ii)) are deemed final in accordance with Section 2.4(e)as finally agreed to by Buyer and Stockholders’ Representative, and (ii) by causing such payments to be credited in immediately available funds to such bank account or accounts as may be designated by the receiving party in accordance with wire transfer instructions delivered in writing not less than two Business Days prior to transfer (and in the case of payments to be made to CSLotherwise determined, in accordance with the instructions used provisions of this Section 2.7(a) is referred to deliver as the Closing Date “Final Purchase Price”).
(b) If the Final Purchase Price Amount). Other is greater than payments made from the Estimated Purchase Price, then the Buyer or the Company shall deliver to each Stockholder an amount in immediately available funds equal to (x) the remainder of the Final Purchase Price minus the Estimated Purchase Price, multiplied by (y) such Stockholders’ Proportionate Escrow Account (which shall bear interest Share as set forth in the Closing Exhibit E.
(c) If the Final Purchase Price is less than the Estimated Purchase Price, then the Buyer and Stockholders’ Representative shall jointly instruct the Escrow AgreementAgent to disburse to Buyer or the Company (as determined by Buyer) out of the Working Capital Escrow an amount in immediately available funds equal to the remainder of the Estimated Purchase Price minus the Final Purchase Price; provided, however, if and to the extent the funds in the Working Capital Escrow Account are insufficient to make the full payment required by this Section 2.7(b), any payment then the Escrow Agent shall deliver the remaining amount due to the Buyer from the Indemnity Escrow Amount.
(d) If there remains a balance in the Working Capital Escrow Account after giving effect to the foregoing payments and all payments to be made pursuant to Section 2.4(f) 8.1, then Buyer shall bear interest from and including provide written instruction to the Escrow Agent to release the Working Capital Escrow Amount to the Stockholders’ Representative (for the benefit of the Stockholders in accordance with their Pro Proportionate Escrow Share as set forth in the Closing Date but excluding Exhibit E) in accordance with the date of payment at a rate of 5 1/4%. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is dueEscrow Agreement.
Appears in 1 contract
Samples: Merger Agreement (SAVVIS, Inc.)
Final Determination of Purchase Price. (i) CSL shall deliver The Purchase Price, taking into account all adjustments and prorations, will be determined finally, and additional payment by Purchaser to Buyer at least six Business Days prior Seller orrefund by Seller to the Closing a closing statement (the “Estimated Closing Purchase Price Certificate”) setting forth the calculation of CSL’s good faith estimate of the Purchase Price (the “CSL Price Estimate”), including a detailed presentation of the calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using accounting methods, policies, practices, procedures, classifications and estimation methodologies as set forth on Schedule 2.4(a) (“Accounting Procedures”). Buyer shall deliver to CSL in writing no later than three Business Days after its receipt of Estimated Closing Purchase Price Certificate a notice (an “Estimated Purchase Price Objection Notice”) reasonably describing (giving consideration to the time period and information available to Buyer for such review) any good faith objections it may have to the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate and its reasons therefor together with the calculation of Buyer’s good faith estimate of the Purchase Price (the “Buyer Price Estimate”), including a detailed presentation of its calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using the same Accounting Procedures as were used to determine the Reference Working CapitalPurchaser, as set forth on Schedule 2.4(a).
(ii) If Buyer fails to deliver to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimated Closing Purchase Price Certificateappropriate, then the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate shall will be the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b).
(iii) If Buyer delivers to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimate Closing Purchase Price Certificate, then CSL and Buyer shall work together in good faith to resolve any disagreements relating to the calculation of the Estimated Purchase Price set forth on the Estimated Closing Price Certificate. Each of CSL and Buyer shall also have the opportunity to revise their respective Price Estimates, including any revisions necessary to bring that difference to less than U.S. $10,000,000, and no such revisions shall in any event constitute an admission against interest, admission that the CSL Price Estimate or Buyer Price Estimate delivered in accordance with Section 2.4(a)(i) was not calculated in good faith, or estoppel or waiver of any rights, arguments, positions taken in such process, nor shall any such revision limit the positions that may be taken by the parties in the final determination of Purchase Price in accordance with Section 2.4(b). If CSL and Buyer are unable to resolve any disputes as to the calculations of the Purchase Price as set forth on the Estimated Closing Purchase Price Certificate and Estimated Purchase Price Objection Notice, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be determined as follows:
(A) if the difference between the CSL Price Estimate and the Buyer Price Estimate is U.S. $10,000,000 or less, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the average of the CSL Price Estimate and Buyer Price Estimate; and
(B) if the difference between the CSL Price Estimate and the Buyer Price Estimate is greater than U.S. $10,000,000, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the lower of the CSL Price Estimate and the Buyer Price Estimate, and an amount equal to the difference between the CSL Price Estimate and the Buyer Price Estimate shall be deposited by Buyer into an escrow account in accordance with Section 2.5.
(b) As promptly as practicable, but in any event within 60 days following the Closing Date, CSL shall prepare (in consultation with Xxxxxx Xxxxxxx, if he shall then be employed by the Operating Companies or another designee of Buyer if Xxxxxx Xxxxxxx is not then employed by the Operating Companies) and deliver to Buyer a Closing Date Balance Sheet and CSL’s certificate, derived from the Closing Date Balance Sheet, setting forth in reasonable detail the calculation of the Closing Net Cash and the Closing Net Working Capital and the difference, if any, between the Purchase Price as determined in accordance with the Closing Date Balance Sheet and the Closing Date Purchase Price Amount delivered in accordance with Section 2.3(b) (the “Closing Purchase Price Adjustment Certificate”). The Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate shall be prepared in accordance with the Accounting Procedures, and shall be delivered together with a report thereon of Ernst & Young (“CSL’s Accountants”) that such statement fairly presents in all material respects the Closing Net Cash and the Closing Net Working Capital of the Companies determined in conformity with such Accounting Procedures. Notwithstanding anything to the contrary set forth herein, in all events the same Accounting Procedures shall be used to calculate both the Reference Working Capital and the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and if for any reason the Accounting Procedures used to calculate the Closing Net Working Capital as finally determined in accordance with this Section 2.4 are required by GAAP applied on a consistent basis to differ from the Accounting Procedures that were used to calculate the Reference Working Capital in accordance with the procedures set forth on Schedule 2.4(a), then the Reference Working Capital shall be re-calculated using the same Accounting Procedures as are used to determine the Closing Net Working Capital as finally determined in accordance with this Section 2.4, and the adjustment to the Purchase Price contemplated by Section 2.1(b)(ii) shall be calculated based on the Reference Working Capital as so recalculated; provided, however, that the Sellers shall not realize an increase in the Purchase Price as a result of any failure properly to apply the Accounting Procedures, including GAAP applied on a consistent basis, in originally calculating the Reference Working Capital. In connection with the preparation of the Closing Purchase Price Adjustment Certificate, Buyer shall and shall cause the Companies to provide the Sellers and the Sellers’ authorized representatives with full access to the books, records, facilities and employees of the Company and to cooperate fully with the Sellers and the Sellers’ authorized representatives, including providing on a timely basis all information necessary or useful in preparing the Closing Purchase Price Adjustment Certificate and require Company employees to assist the Sellers and the Sellers’ authorized representatives in the preparation of the Closing Purchase Price Adjustment Certificate.
(c) CSL shall afford Buyer timely access to all supporting documents and work papers used in the preparation of the Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate and the calculation of the Closing Net Cash amounts and the Closing Net Working Capital.
(d) Buyer may dispute any amounts reflected on the Closing Purchase Price Adjustment Certificate or the calculation of Closing Net Cash or the Closing Net Working Capital, but only on the basis of its belief that the amounts reflected on the Closing Purchase Price Adjustment Certificate were not arrived at in accordance with this Agreement or resulted from a mistake of fact, failure to comply with the Accounting Procedures, including GAAP applied on a consistent basis, or other inaccuracy contained in the Closing Date Balance Sheet or elsewhere; provided, however, that Buyer shall have notified CSL in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within 60 days of CSL’s delivery to Buyer of the Closing Purchase Price Adjustment Certificate. In the event of such a dispute, CSL and Buyer shall work together in good faith to resolve any disagreements. If CSL and Buyer are unable to reach a resolution within 30 days after receipt by CSL of Buyer’s written notice of dispute, CSL and Buyer shall submit the items then remaining in dispute for resolution to an independent accounting firm of international reputation mutually acceptable to them) (the “Independent Accounting Firm”), which shall, within 30 days after such submission, determine and report to the CSL and Buyer upon such remaining disputed items, and such report shall be final and binding on all of the parties. The fees and disbursements of the Independent Accounting Firm shall be allocated evenly between CSL and Buyer. In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators.
(e) The Closing Purchase Price Adjustment Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) shall be deemed final for the purposes of this Section 2.4 upon the earliest of (i) the failure of Buyer to notify CSL of a dispute within 60 days of CSL’s delivery of the Closing Purchase Price Certificate to Buyer, (ii) the resolution of all disputes pursuant to Section 2.4(d) by Buyer and CSL, (iii) the resolution of all disputes, pursuant to Section 2.4(d) by the Buyer’s Accountants and CSL’s Accountants, and (iv) the resolution of all disputes pursuant to Section 2.4(d) by the Independent Accounting Firm. Buyer will inform Deloitte & Touche of the final Purchase Price promptly after its determination, and in no event later than five Business Days after it is deemed final pursuant to this Section 2.4(e).
(f) If the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is less than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), (i) Sellers shall pay to Buyer an amount equal to the absolute value of such difference and (ii) Buyer shall be entitled to receive all amounts held in the Escrow Account. In the event that the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is more than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), then Buyer shall pay to CSL, on behalf of all of the Sellers, the absolute value of such difference (and Buyer may use amounts held in the Escrow Account, if any, for such purpose). Any payment made in accordance with this Section 2.4(f), and any payment made in accordance with Article VIII, Article IX or any other indemnification provision contained herein, shall, to the extent not prohibited by applicable Law, be deemed for all tax, accounting and other reporting purposes as an adjustment to the Purchase Price.
(g) Any payment made pursuant to Section 2.4(f) shall be made (i) within ten (10) Business Days after the Closing Purchase Price Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) are deemed final in accordance with Section 2.4(e), and (ii) by causing such payments to be credited in immediately available funds to such bank account or accounts as may be designated by the receiving party in accordance with wire transfer instructions delivered in writing not less than two Business Days prior to transfer (and in the case of payments to be made to CSLmade, in accordance with the instructions used following procedures:
1. Within seventy (70) days after the Closing Date, Purchaser will deliver to Seller “Purchaser’s Statement,” setting forth Buyer’s determination of the amount of the Purchase Price and the calculation thereof, taking into account all adjustments and prorations through the sixtieth (60th) day following Closing. If Seller disputes the amount of the Purchase Price determined by Purchaser, Seller shall deliver to Purchaser within fifteen (15) days after receipt of Purchaser’s Statement, “Seller’s Statement,” setting forth Seller’s determination of the final Purchaser Price. If Seller notifies Purchaser of Seller’s acceptance of Purchaser’s Statement, or if Seller otherwise fails to deliver Seller’s Statement within said fifteen (15) day period, Purchaser’s determination shall be final and payment shall be made thereon and in accordance therewith. Purchaser shall offset any debit adjustments to the Closing Date Purchase Price Amount)against the Promissory Note.
2. Other than payments made from Purchaser and Seller shall use their good faith efforts to resolve any dispute regarding the Escrow Account determination of the Purchase Price. If the parties are unable to resolve the dispute within fifteen (15) days following the delivery of the later of Purchaser’s Statement or Seller’s Statement, each of Purchaser and Seller shall select an independent arbitrator who shall be knowledgeable and experienced in share acquisitions, and the two (2) arbitrators so chosen shall attempt to resolve the dispute. If they are not able to do so within forty-five (45) days following the delivery of the later of Purchaser’s Statement or Seller’s Statement, as the case may be, the two (2) arbitrators shall agree upon a third (3rd) arbitrator, and the dispute shall be resolved by the decision of the majority of the arbitrators, which shall bear interest as set forth in be conclusive and binding on the Escrow Agreement), any payment to be made pursuant to Section 2.4(f) shall bear interest from and including parties. Any fees of the Closing Date but excluding the date of payment at a rate of 5 1/4%. Such interest arbitrators shall be payable at split equally between the same parties. All payments due under the Promissory Note shall be suspended until such time as the payment resolution is reached, without penalty to which it relates and shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is duePurchaser.
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Samples: Share Purchase Agreement (Deep Green Waste & Recycling, Inc.)
Final Determination of Purchase Price. (i) CSL shall deliver to Buyer at least six Business Days prior to the Closing a closing statement (the “Estimated Closing Purchase Price Certificate”) setting forth the calculation of CSL’s good faith estimate of the Purchase Price (the “CSL Price Estimate”), including a detailed presentation of the calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using accounting methods, policies, practices, procedures, classifications and estimation methodologies as set forth on Schedule 2.4(a) (“Accounting Procedures”). Buyer shall deliver to CSL in writing no later than three Business Days after its receipt of Estimated Closing Purchase Price Certificate a notice (an “Estimated Purchase Price Objection Notice”) reasonably describing (giving consideration to the time period and information available to Buyer for such review) any good faith objections it may have to the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate and its reasons therefor together with the calculation of Buyer’s good faith estimate of the Purchase Price (the “Buyer Price Estimate”), including a detailed presentation of its calculations of the items comprising Closing Net Cash and Closing Net Working Capital, which calculations shall be prepared using the same Accounting Procedures as were used to determine the Reference Working Capital, as set forth on Schedule 2.4(a).
(ii) If Buyer fails to deliver to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimated Closing Purchase Price Certificate, then the CSL Price Estimate as set forth on the Estimated Closing Purchase Price Certificate shall be the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b).
(iii) If Buyer delivers to CSL an Estimated Purchase Price Objection Notice within three Business Days of its receipt of the Estimate Closing Purchase Price Certificate, then CSL and Buyer shall work together in good faith to resolve any disagreements relating to the calculation of the Estimated Purchase Price set forth on the Estimated Closing Price Certificate. Each of CSL and Buyer shall also have the opportunity to revise their respective Price Estimates, including any revisions necessary to bring that difference to less than U.S. $10,000,000, and no such revisions shall in any event constitute an admission against interest, admission that the CSL Price Estimate or Buyer Price Estimate delivered in accordance with Section 2.4(a)(i) was not calculated in good faith, or estoppel or waiver of any rights, arguments, positions taken in such process, nor shall any such revision limit the positions that may be taken by the parties in the final determination of Purchase Price in accordance with Section 2.4(b). If CSL and Buyer are unable to resolve any disputes as to the calculations of the Purchase Price as set forth on the Estimated Closing Purchase Price Certificate and Estimated Purchase Price Objection Notice, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be determined as follows:
(A) if the difference between the CSL Price Estimate and the Buyer Price Estimate is U.S. $10,000,000 or less, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the average of the CSL Price Estimate and Buyer Price Estimate; and
(B) if the difference between the CSL Price Estimate and the Buyer Price Estimate is greater than U.S. $10,000,000, then the “Closing Date Purchase Price Amount” for purposes of Section 2.3(b) shall be the lower of the CSL Price Estimate and the Buyer Price Estimate, and an amount equal to the difference between the CSL Price Estimate and the Buyer Price Estimate shall be deposited by Buyer into an escrow account in accordance with Section 2.5.
(ba) As promptly as practicable, but and in any event within not later than 60 days following the Closing Date, CSL Buyer, at its expense, shall prepare (in consultation with Xxxxxx Xxxxxxx, if he shall then be employed by the Operating Companies or another designee of Buyer if Xxxxxx Xxxxxxx is not then employed by the Operating Companies) and cause Buyer's Accountants to deliver to Buyer Sellers a statement (the "Post-Closing Date Balance Sheet Statement"), prepared in accordance with GAAP consistently applied with the principles, methodologies and CSL’s certificate, derived from assumptions used to prepare the Closing Date Balance Sheet, setting forth their good faith calculation of (i) the Company's Indebtedness as of immediately prior to the Closing Date (the "Actual Company Indebtedness"), (ii) the Company Unpaid Transaction Expenses (the "Actual Company Unpaid Transaction Expenses"), (iii) the Working Capital as of the opening of business on the Closing Date (the "Actual Working Capital" and, together with the Actual Company Indebtedness and the Actual Company Unpaid Transaction Expenses, the "Post-Closing Statement Components"), (iv) the Estimated Tax Adjustment as of the opening of business on the Closing Date (such adjustment to be calculated in reasonable detail a manner consistent with the Estimated Tax Adjustment) (the "Actual Tax Adjustment") and (v) Buyer's determination of the Purchase Price Calculation based on the Post-Closing Statement Components as set forth in the Post-Closing Statement. The Post-Closing Statement shall be accompanied by the worksheets and data that support Buyer's calculation of the Closing Net Cash Actual Company Indebtedness, the Actual Company Unpaid Transaction Expenses, the Actual Working Capital, the Actual Tax Adjustment and the Closing Net Working Capital and the difference, if any, between resulting Buyer's determination of the Purchase Price Calculation. Upon reasonable notice during normal business hours, at any time and from time to time, Sellers and the Company's Accountants shall be provided reasonable access to the pertinent accounting books and records, work papers and the accounting personnel of Buyer's Accountants and Buyer, and Buyer and Buyer's Accountants shall have reasonable access to the pertinent accounting books and records, work papers and the accounting personnel of the Sellers and the Company's Accountants, during such 60 day period and thereafter until the Final Purchase Price (as defined in Section 2.3(c) below) has been finally determined in accordance with this Section 2.3.
(b) If Sellers disagree with Buyer's determination of any of the Post-Closing Date Balance Sheet Statement Components as set forth in the Post-Closing Statement, then within 30 days following the Sellers' receipt of the Post-Closing Statement, Sellers shall notify Buyer in writing of their objection, which shall be signed by all Sellers and shall set forth in reasonable detail Sellers' determination of all Post-Closing Statement Components so disputed by Sellers and the basis of Sellers' disagreement. A failure by Sellers to so notify Buyer in writing of their disagreement within such 30 days will constitute acceptance by Sellers of Buyer's calculation of each of the Post-Closing Date Statement Components and the resulting Purchase Price Amount delivered Calculation as the Final Purchase Price; provided, however, notwithstanding anything to the contrary contained herein, that Sellers shall not be entitled to dispute the Actual Tax Adjustment to the extent such adjustment was calculated in accordance a manner consistent with Section 2.3(b) (the “Closing Purchase Price Estimated Tax Adjustment, taking into account those assumptions used in calculating the Estimated Tax Adjustment Certificate”set forth on Schedule 2.2(a). The To the extent Sellers so notify Buyer in writing of any such disagreements within such 30 days, Buyer and Sellers will negotiate in good faith to resolve such disagreements during the 15 day period following notice by Sellers to Buyer of such disagreements; provided that any Post-Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate Statement Components (or items therein) not specifically disputed by Sellers in such written notice shall be prepared deemed final and binding on Sellers.
(c) If such disagreement is not resolved within such 15 day period, the disputed matter(s) shall be promptly submitted to the Independent Accounting Firm for final resolution. The parties shall instruct the Independent Accounting Firm to make a final determination of the disputed Post-Closing Statement Components in accordance with the guidelines set forth in this Agreement and to render such a determination within 30 days after the retention of the Independent Accounting ProceduresFirm by Buyer and Sellers. The Independent Accounting Firm will be requested to review only the matter(s) in dispute between Buyer and Sellers and to determine the Post-Closing Statement Components so disputed in accordance with the provisions of Section 2.3(b). In its determination, the Independent Accounting Firm shall be entitled to rely on work papers and similar items generated by the Company's Accountants, Sellers, Buyer's Accountants and Buyer in respect of their determination of the Post-Closing Statement Components and shall be delivered together with a report thereon of Ernst & Young (“CSL’s Accountants”) that instructed not to make any such statement fairly presents in all material respects the Closing Net Cash and the Closing Net Working Capital determinations based on independent review. The determination of the Companies Independent Accounting Firm shall be final and binding on the parties with respect to the disputed matters. The fees and expenses of the Independent Accounting Firm shall be paid by the party hereto (either Buyer or Sellers) whose determination of the Purchase Price Calculation was further away from the Final Purchase Price decided upon by the Independent Accounting Firm. In case the Purchase Price Calculation made by each of Buyer and Sellers is equally accurate relative to the Final Purchase Price decided upon by the Independent Accounting Firm, such fees and expenses shall be split evenly between Buyer and Sellers. Once the Post-Closing Statement Components become final and binding upon the parties pursuant to Section 2.3(b) above or pursuant to this Section 2.3(c), the Purchase Price Calculation, determined pursuant to such final Post-Closing Statement Components shall be known as the "Final Purchase Price."
(d) Within five days of the determination of the Final Purchase Price in conformity accordance with this Section 2.3: (i) if the Final Purchase Price is greater than the Preliminary Purchase Price, then Buyer shall pay the amount of such Accounting Proceduresdifference to Sellers in immediately available funds in accordance with Sellers written wire instructions, and (ii) if the Preliminary Purchase Price is greater than the Final Purchase Price, Sellers shall jointly and severally pay the amount of such difference to Buyer in immediately available funds pursuant to Buyer's written wire instructions. Notwithstanding anything to the contrary set forth herein, in all events the same Accounting Procedures Buyer may (but shall not be used obligated to) recover any amounts required to calculate both the Reference Working Capital and the Closing Net Working Capital as finally determined in accordance with be paid to Buyer pursuant to clause (ii) of this Section 2.4, and if for any reason the Accounting Procedures used to calculate the Closing Net Working Capital as finally determined in accordance with this Section 2.4 are required by GAAP applied on a consistent basis to differ 2.3(d) from the Accounting Procedures that were used to calculate the Reference Working Capital Escrow Account in accordance with the procedures set forth on Schedule 2.4(a), then terms of the Reference Working Capital Escrow Agreement. Sellers shall be re-calculated using the same Accounting Procedures as are used to determine the Closing Net Working Capital as finally determined in accordance with this Section 2.4, execute and the adjustment deliver to the Purchase Price contemplated by Section 2.1(b)(ii) shall be calculated based on the Reference Working Capital as so recalculated; provided, however, that the Sellers shall not realize an increase in the Purchase Price as a result of any failure properly to apply the Accounting Procedures, including GAAP applied on a consistent basis, in originally calculating the Reference Working Capital. In connection with the preparation of the Closing Purchase Price Adjustment Certificate, Buyer shall and shall cause the Companies to provide the Sellers and the Sellers’ authorized representatives with full access to the books, records, facilities and employees of the Company and to cooperate fully with the Sellers and the Sellers’ authorized representatives, including providing on a timely basis all information necessary or useful in preparing the Closing Purchase Price Adjustment Certificate and require Company employees to assist the Sellers and the Sellers’ authorized representatives in the preparation of the Closing Purchase Price Adjustment Certificate.
(c) CSL shall afford Buyer timely access to all supporting documents and work papers used in the preparation of the Closing Date Balance Sheet and the Closing Purchase Price Adjustment Certificate and the calculation of the Closing Net Cash amounts and the Closing Net Working Capital.
(d) Buyer may dispute any amounts reflected on the Closing Purchase Price Adjustment Certificate or the calculation of Closing Net Cash or the Closing Net Working Capital, but only on the basis of its belief that the amounts reflected on the Closing Purchase Price Adjustment Certificate were not arrived at in accordance with this Agreement or resulted from a mistake of fact, failure to comply with the Accounting Procedures, including GAAP applied on a consistent basis, or other inaccuracy contained in the Closing Date Balance Sheet or elsewhere; provided, however, that Buyer shall have notified CSL in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within 60 days of CSL’s delivery to Buyer of the Closing Purchase Price Adjustment Certificate. In the event of such a dispute, CSL and Buyer shall work together in good faith to resolve any disagreements. If CSL and Buyer are unable to reach a resolution within 30 days after receipt by CSL of Buyer’s written notice of dispute, CSL and Buyer shall submit the items then remaining in dispute for resolution to an independent accounting firm of international reputation mutually acceptable to them) (the “Independent Accounting Firm”), which shall, within 30 days after such submission, determine and report to the CSL and Buyer upon such remaining disputed items, and such report shall be final and binding on all of the parties. The fees and disbursements of the Independent Accounting Firm shall be allocated evenly between CSL and Buyer. In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of arbitrators.
(e) The Closing Purchase Price Adjustment Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) shall be deemed final for the purposes of this Section 2.4 upon the earliest of (i) the failure of Buyer to notify CSL of a dispute within 60 days of CSL’s delivery of the Closing Purchase Price Certificate to Buyer, (ii) the resolution of all disputes pursuant to Section 2.4(d) by Buyer and CSL, (iii) the resolution of all disputes, pursuant to Section 2.4(d) by the Buyer’s Accountants and CSL’s Accountants, and (iv) the resolution of all disputes pursuant to Section 2.4(d) by the Independent Accounting Firm. Buyer will inform Deloitte & Touche of the final Purchase Price promptly after its determination, and in no event later than five Business Days after it is deemed final pursuant to this Section 2.4(e).
(f) If the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is less than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), (i) Sellers shall pay to Buyer an amount equal to the absolute value of such difference and (ii) Buyer shall be entitled to receive all amounts held in the Escrow Account. In the event that the final calculation of the Purchase Price pursuant to Section 2.4(b)-(e) is more than the Closing Date Purchase Price Amount paid to Sellers in accordance with Section 2.3(b), then Buyer shall pay to CSL, on behalf of all of the Sellers, the absolute value of such difference (and Buyer may use amounts held in the Escrow Account, if any, for such purpose). Any payment made in accordance with this Section 2.4(f), and Agent any payment made in accordance with Article VIII, Article IX or any other indemnification provision contained herein, shall, to the extent not prohibited by applicable Law, be deemed for all tax, accounting and other reporting purposes as an adjustment to the Purchase Price.
(g) Any payment made pursuant to Section 2.4(f) shall be made (i) within ten (10) Business Days after the Closing Purchase Price Certificate and the calculation of the Purchase Price (including the adjustments contemplated by Section 2.1(b)(i) and (ii)) are deemed final in accordance with Section 2.4(e), and (ii) by causing such payments to be credited in immediately available funds to such bank account or accounts direction as may be designated by required to cause the receiving party in accordance with wire transfer instructions delivered in writing not less than two Business Days prior Escrow Agent to transfer (and in release that portion of the case Escrow Amount necessary to effect the payment of payments to be made to CSL, in accordance with any such adjustment of the instructions used to deliver the Closing Date Final Purchase Price Amount)to Buyer. Other than payments made Upon any such release of funds from the Escrow Account (which Sellers shall bear interest as set forth in promptly, but not later than five days after such release, pay the amount so released back into the Escrow Account to be held pursuant to the provisions of the Escrow Agreement), any payment to be made pursuant to Section 2.4(f) shall bear interest from and including the Closing Date but excluding the date of payment at a rate of 5 1/4%. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 365 days and the actual number of days for which interest is due.
Appears in 1 contract
