Final Net Working Capital Adjustment. 2.5.1 Within 30 days after the Closing Date, Purchaser shall deliver to Sellers (i) a balance sheet of the Business as of 12:01 a.m. Portland, Oregon time on the Closing Date (the “Closing Balance Sheet”), which shall be prepared in accordance with the provisions of this Agreement, GAAP, and the Sample Calculation, and (ii) based on the Closing Balance Sheet, a calculation of the proposed final Net Working Capital as of the Closing Date (the “Proposed Final Net Working Capital”), plus Purchaser’s proposed adjustment, if any, to the Purchase Price in accordance with this Section 2.5 (the “Proposed Final Net Working Capital Adjustment”), which shall be calculated in a manner consistent with the Sample Calculation and the Working Capital Range as more particularly described in this Section 2.5. Sellers shall give Purchaser full and timely access to financial and accounting information and other documentation of Sellers so that Purchaser can calculate the Proposed Final Net Working Capital. 2.5.2 If Sellers do not accept the Closing Balance Sheet or the calculation of the Proposed Final Net Working Capital Adjustment (including the calculation of the Proposed Final Net Working Capital) prepared and delivered by Purchaser, Sellers shall give written notice (the “Objection Notice”) to Purchaser within 30 days after Sellers’ receipt thereof. During such 30-day period, Purchaser shall give Sellers full and timely access to financial and accounting information and other documentation used by Purchaser in calculating the Proposed Final Net Working Capital, so that Sellers can verify the Proposed Final Net Working Capital calculations. Sellers shall be deemed to have accepted the Closing Balance Sheet and the computation of the Proposed Final Net Working Capital Adjustment of Purchaser to the extent Sellers have not by then given Purchaser an Objection Notice specifying in reasonable detail the basis for each objection, and Purchaser’s Proposed Final Net Working Capital and Final Net Working Capital Adjustment shall be the “Final Net Working Capital” and “Final Net Working Capital Adjustment,” respectively. 2.5.3 If Sellers reject the Proposed Final Net Working Capital and Proposed Final Net Working Capital Adjustment, Sellers and Purchaser shall use commercially reasonable efforts to resolve such dispute within 30 days after delivery of Sellers’ Objection Notice. If Sellers and Purchaser are unable to resolve any disagreement within 30 days after delivery of Sellers’ Objection Notice, the parties shall engage a mutually agreed upon independent accountant to resolve the issues in dispute (the “Independent Accountant”), acting as an expert and not as an arbitrator. The Independent Accountant (i) shall apply accounting principles, in accordance with Section 2.2, to the issues at hand, (ii) shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, (iii) shall be limited in scope to the disputed issues and amounts specified by Sellers (each such issue, an “Objection”) in the Objection Notice, and (iv) shall, with respect to each Objection, make its determination in favor of the position set forth by either Purchaser or Sellers. The parties shall instruct the Independent Accountant to render its decision within 30 days of the engagement, and such decision shall be binding on the parties and shall be the Final Net Working Capital and Final Net Working Capital Adjustment. Purchaser and Sellers shall each pay their own costs associated with this dispute and shall split the costs of the Independent Accountant. 2.5.4 Subject to (i) the determination of the Final Net Working Capital and the Final Net Working Capital Adjustment and (ii) the provisions in Section 2.5.5, if such Final Net Working Capital is more than $XXXX (the “Upper Target”) or less than $XXXX (the “Lower Target”), the Purchase Price shall be adjusted up, dollar for dollar, for each dollar in excess of the Upper Target or adjusted down, dollar for dollar, for each dollar below the Lower Target (such concept hereinafter referred to as the “Working Capital Range”). If the Final Net Working Capital is within the Working Capital Range, including, if the Final Net Working Capital equals the Upper Target or equals the Lower Target, then there shall be no adjustment to the Purchase Price. For example purposes only, (i) if the Final Net Working Capital is $XXXX, the Purchase Price would be increased by $XXXX, (ii) if the Final Net Working Capital is $XXXX, then the Purchase Price would be decreased by $XXXX, and (iii) if the Final Net Working Capital is $XXXX, there would no adjustment to the Purchase Price. 2.5.5 Within five (5) business days after the Final Net Working Capital and the Final Net Working Capital Adjustment are deemed final and binding as provided in this Section 2.5, the following shall occur: (i) If the Final Net Working Capital Adjustment exceeds the Upper Target, Purchaser shall pay to Sellers such excess plus the NWC Holdback Amount, by wire transfer of immediately available funds to an account or accounts that Sellers shall designate in writing to Purchaser (“Sellers Designated Account”), or (ii) Subject to the remainder of this Section 2.5.5, if the Final Net Working Capital Adjustment is less than the Lower Target (a “Working Capital Deficit”), Purchaser shall disburse the NWC Holdback Amount less the Working Capital Deficit to the Sellers Designated Account. If the available NWC Holdback Amount is insufficient to pay the entire amount of the Working Capital Deficit, the Sellers, severally but not jointly, and the Principals, severally and not jointly, in accordance with each Principal’s Pro Rata Share (as defined below) (provided that Young and the Trusts shall be jointly and severally liable for the portion of the Working Capital deficit attributable to the Trusts or Young), shall promptly pay to Purchaser the amount by which the Working Capital Deficit exceeds the NWC Holdback Amount by wire transfer of immediately available funds to the account designated in writing by Purchaser, and neither the Sellers nor the Principals shall have any right to the NWC Holdback Amount. For an avoidance of doubt, any adjustments to the Purchase Price caused by the Final Net Working Capital Adjustment shall be controlled by Section 2.5.4.
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Final Net Working Capital Adjustment. 2.5.1 (a) Within 30 ninety (90) days after the Closing Date, Purchaser or its accountant (the “Purchaser’s Accountant”) shall determine, on behalf and at the expense of Purchaser, and shall prepare and deliver to Sellers (i) a balance sheet statement of the Net Working Capital of the Business as of 12:01 a.m. Portland, Oregon time the close of business on the Business Day immediately preceding the Closing Date (the “Closing Balance Sheet”)Date, which statement shall be prepared in accordance with GAAP (the “Final Closing Statement”). Purchaser or Purchaser’s Accountant shall consult with Sellers’ accountants in connection with the preparation of the Final Closing Statement and shall permit Sellers’ accountants at the earliest practicable date, subject to the execution by Sellers and their accountants of any reasonable release or indemnification agreement required by Sellers’ Accountant, to review and make copies of all work papers, schedules and calculations used in the preparation of the Final Closing Statement.
(b) Sellers may dispute the amounts reflected on the Final Closing Statement (a “Disputed Item”), but only on the basis that a Disputed Item does not reflect, or is not consistent or in compliance with, the provisions of this Agreement; provided, GAAPhowever, that Seller shall notify Purchaser in writing of each Disputed Item, and specify the Sample Calculationamount thereof in dispute and the basis therefor, and within sixty (ii60) based on the Closing Balance Sheet, a calculation days after receipt of the proposed final Net Working Capital as Final Closing Statement. The failure by Sellers to provide a notice of Disputed Items to Purchaser within such sixty (60) day period will constitute Sellers’ acceptance of the Final Closing Date Statement.
(c) If a notice of Disputed Items shall be timely delivered pursuant to subclause (b) above, Sellers and Purchaser shall, during the ten (10) Business Days following the date of such delivery (the “Proposed Final Net Working CapitalResolution Period”), plus negotiate in good faith to resolve the Disputed Items. If, during such Resolution Period the parties are unable to reach agreement, Sellers and Purchaser shall refer all unresolved Disputed Items to an accounting firm or expert of nationally recognized standing as Sellers and Purchaser shall mutually agree upon or, if the parties are unable to so agree, as appointed by the American Arbitration Association (the “Accounting Expert”). The Accounting Expert shall make a determination with respect to each unresolved Disputed Item within fifteen (15) days after its engagement by Sellers and Purchaser to resolve such Disputed Items, which determination shall be made in accordance with the rules set forth in Section 3.4 and this Section 3.5. The Accounting Expert shall be directed to deliver to Sellers and Purchaser’s proposed adjustment, within such fifteen (15) day period, a report setting forth its adjustments, if any, to the Purchase Price in accordance with this Section 2.5 (Final Closing Statement and the “Proposed Final Net Working Capital Adjustment”), which calculations supporting such adjustments. Such report shall be calculated in a manner consistent with the Sample Calculation final and the Working Capital Range as more particularly described in this Section 2.5. Sellers shall give Purchaser full and timely access to financial and accounting information and other documentation of Sellers so that Purchaser can calculate the Proposed Final Net Working Capital.
2.5.2 If Sellers do not accept the Closing Balance Sheet or the calculation of the Proposed Final Net Working Capital Adjustment (including the calculation of the Proposed Final Net Working Capital) prepared and delivered by Purchaser, Sellers shall give written notice (the “Objection Notice”) to Purchaser within 30 days after Sellers’ receipt thereof. During such 30-day period, Purchaser shall give Sellers full and timely access to financial and accounting information and other documentation used by Purchaser in calculating the Proposed Final Net Working Capital, so that Sellers can verify the Proposed Final Net Working Capital calculations. Sellers shall be deemed to have accepted the Closing Balance Sheet and the computation of the Proposed Final Net Working Capital Adjustment of Purchaser to the extent Sellers have not by then given Purchaser an Objection Notice specifying in reasonable detail the basis for each objection, and Purchaser’s Proposed Final Net Working Capital and Final Net Working Capital Adjustment shall be the “Final Net Working Capital” and “Final Net Working Capital Adjustment,” respectively.
2.5.3 If Sellers reject the Proposed Final Net Working Capital and Proposed Final Net Working Capital Adjustment, Sellers and Purchaser shall use commercially reasonable efforts to resolve such dispute within 30 days after delivery of Sellers’ Objection Notice. If Sellers and Purchaser are unable to resolve any disagreement within 30 days after delivery of Sellers’ Objection Notice, the parties shall engage a mutually agreed upon independent accountant to resolve the issues in dispute (the “Independent Accountant”), acting as an expert and not as an arbitrator. The Independent Accountant (i) shall apply accounting principles, in accordance with Section 2.2, to the issues at hand, (ii) shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, (iii) shall be limited in scope to the disputed issues and amounts specified by Sellers (each such issue, an “Objection”) in the Objection Notice, and (iv) shall, with respect to each Objection, make its determination in favor of the position set forth by either Purchaser or Sellers. The parties shall instruct the Independent Accountant to render its decision within 30 days of the engagement, and such decision shall be binding on the parties and shall be the Final Net Working Capital conclusive. Sellers and Final Net Working Capital Adjustment. Purchaser and Sellers shall each pay their own costs associated with this dispute and shall split one-half of all the costs incurred in connection with the engagement of the Independent Accountant.
2.5.4 Subject Accounting Expert; provided that if the final adjustment payment to be made pursuant to Section 3.5(d) (ithe “Final Adjustment”) the determination of the Final Net Working Capital and the Final Net Working Capital Adjustment and payment that would have resulted from the use of the proposed calculations of one of the parties hereto (iithe “Erroneous Party”) the provisions in Section 2.5.5, if such Final Net Working Capital is more than $XXXX (the “Upper Target”) or less than $XXXX (the “Lower Target”), the Purchase Price shall be adjusted up, dollar for dollar, for each dollar in excess of the Upper Target or adjusted down, dollar for dollar, for each dollar below the Lower Target (such concept hereinafter referred to as the “Working Capital Range”). If difference between the Final Net Working Capital is within the Working Capital Range, including, if the Final Net Working Capital equals the Upper Target or equals the Lower Target, then there shall be no adjustment to the Purchase Price. For example purposes only, (i) if the Final Net Working Capital is $XXXX, the Purchase Price would be increased by $XXXX, (ii) if the Final Net Working Capital is $XXXX, then the Purchase Price would be decreased by $XXXX, and (iii) if the Final Net Working Capital is $XXXX, there would no adjustment to the Purchase Price.
2.5.5 Within five (5) business days after the Final Net Working Capital Adjustment and the Final Net Working Capital Adjustment are deemed final and binding as provided in this Section 2.5that would have resulted from the use of the other party’s proposed calculations, the following shall occur: (i) If the Final Net Working Capital Adjustment exceeds the Upper Target, Purchaser Erroneous Party shall pay to Sellers such excess plus the NWC Holdback Amount, by wire transfer of immediately available funds to an account or accounts that Sellers shall designate in writing to Purchaser (“Sellers Designated Account”), or (ii) Subject to the remainder of this Section 2.5.5, if the Final Net Working Capital Adjustment is less than the Lower Target (a “Working Capital Deficit”), Purchaser shall disburse the NWC Holdback Amount less the Working Capital Deficit to the Sellers Designated Account. If the available NWC Holdback Amount is insufficient to pay the entire amount all of the Working Capital Deficit, the Sellers, severally but not jointly, fees and the Principals, severally and not jointly, in accordance with each Principal’s Pro Rata Share (as defined below) (provided that Young and the Trusts shall be jointly and severally liable for the portion expenses of the Working Capital deficit attributable to the Trusts or Young)Accounting Expert. As used herein, shall promptly pay to Purchaser the amount by which the Working Capital Deficit exceeds the NWC Holdback Amount by wire transfer of immediately available funds to the account designated in writing by Purchaser, and neither the Sellers nor the Principals shall have any right to the NWC Holdback Amount. For an avoidance of doubt, any adjustments to the Purchase Price caused by the Final Net Working Capital Adjustment shall be controlled by Section 2.5.4.“
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Final Net Working Capital Adjustment. 2.5.1 The parties hereto hereby covenant and agree that following the Closing, the Preliminary Purchase Price shall be subject to the procedures and adjustments set forth in this Section 2.07 and Section 2.08 in order to determine the final Purchase Price.
(a) Within 30 120 days after Closing, the Closing Date, Purchaser Purchasers shall cause FB to prepare and deliver to Sellers the Sellers’ Representative an unaudited statement, setting forth the relevant calculations as of the Effective Time of (a) the Purchase Price and (b) the following specific components thereof: (i) a balance sheet of the Business as of 12:01 a.m. PortlandAvailable Cash, Oregon time on (ii) the Closing Date Company Debt, (iii) the Net Working Capital (the “Closing Balance Sheet”), which shall be prepared in accordance with the provisions of this Agreement, GAAP, and the Sample Calculation, and (ii) based on the Closing Balance Sheet, a calculation of the proposed final Net Working Capital as of the Closing Date (the “Proposed Final Net Working Capital”), plus Purchaser’s proposed adjustment, if any, to (iv) the Purchase Price in accordance with this Section 2.5 (the “Proposed Final Net Working Capital Adjustment”), which shall be calculated in a manner consistent with the Sample Calculation and the Working Capital Range as more particularly described in this Section 2.5. Sellers shall give Purchaser full and timely access to financial and accounting information and other documentation of Sellers so that Purchaser can calculate the Proposed Final Net Working Capital.
2.5.2 If Sellers do not accept the Closing Balance Sheet or the calculation of the Proposed Final Net Working Capital Adjustment (including the calculation of the Proposed Final Net Working Capital) prepared and delivered by Purchaser, Sellers shall give written notice (the “Objection Notice”) to Purchaser within 30 days after Sellers’ receipt thereof. During such 30-day period, Purchaser shall give Sellers full and timely access to financial and accounting information and other documentation used by Purchaser in calculating the Proposed Final Net Working Capital, so that Sellers can verify the Proposed Final Net Working Capital calculations. Sellers shall be deemed to have accepted the Closing Balance Sheet and the computation of the Proposed Final Net Working Capital Adjustment of Purchaser to the extent Sellers have not by then given Purchaser an Objection Notice specifying in reasonable detail the basis for each objection, and Purchaser’s Proposed Final Net Working Capital and Final Net Working Capital Adjustment shall be the “Final Net Working Capital” and “Final Net Working Capital Adjustment,” respectively.
2.5.3 If Sellers reject the Proposed Final Net Working Capital and Proposed Final Net Working Capital Adjustment, Sellers and Purchaser (v) the Transactions Expenses (such written estimates, together with reasonable supporting detail demonstrating the basis for the calculation thereof are collectively referred to as the “Post-Closing Adjustment Statement”). For the avoidance of doubt, notwithstanding anything to the contrary contained herein, if, after 120 days of the Closing Date, any accounts receivable that were reflected as a current asset in the calculation of the Estimated Net Working Capital set forth in the Pre-Closing Adjustment Statement have not been collected by FB, then such uncollected accounts receivable, or portion thereof, shall not be deemed to be a current asset for purposes of calculating the Final Net Working Capital. Purchasers and their Affiliates shall use commercially reasonable efforts following the Closing Date to resolve collect accounts receivable reflected as a current asset in the calculation of the Estimated Net Working Capital, and if any such dispute account receivable is uncollected after 120 days of the Closing Date but is later paid, the Purchasers shall pay to the Sellers’ Representative within 30 fifteen (15) days after of such collection the amount of such collected receivable. The Post-Closing Adjustment Statement shall be prepared in accordance with ASPE, using the same accounting methods, policies, practices, principles and procedures with consistent classifications, judgments and methodologies as were used in connection with preparing the Interim Balance Sheet, consistent with the calculation of the Net Working Capital set forth in Exhibit F and shall exclude the effects of Transactions. The Seller Parties shall pay one-half of the cost of the preparation of the Post-Closing Adjustment Statement and the Purchasers shall pay one-half.
(b) During the 15 day period following the Sellers’ Representative’s receipt of the Post-Closing Adjustment Statement, the Sellers’ Representative and his Representatives shall be permitted, upon reasonable request, reasonable access to review all working papers, documents and records used by the Purchasers to prepare the Post-Closing Adjustment Statement during normal business hours and make copies reasonably required of the working papers of the Purchasers relating to the preparation of the Post-Closing Adjustment Statement. In connection with the delivery of any working papers, the Sellers’ Objection NoticeRepresentative and its Representatives, the Companies, the Subsidiaries and their respective accountants shall execute and deliver such customary access and confidentiality agreements, releases, waivers or other documents as may be reasonably requested by the Purchasers. If Sellers The Post-Closing Adjustment Statement shall become final and Purchaser are unable binding upon the parties hereto on the 15th day following delivery thereof, except to resolve any disagreement within 30 days after delivery of the extent that the Sellers’ Objection Notice, Representative gives a written notice of disagreement with the parties shall engage a mutually agreed upon independent accountant to resolve the issues in dispute Post-Closing Adjustment Statement (the “Independent AccountantNotice of Disagreement”)) to the Purchasers prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and the dollar amount of such disputed items. If a Notice of Disagreement complying with the preceding sentence is received by the Purchasers prior to the 15th day following delivery of the Post-Closing Adjustment Statement, acting then the Post-Closing Adjustment Statement (as an expert and not as an arbitrator. The Independent Accountant (i) shall apply accounting principles, revised in accordance with Section 2.2, to the issues at hand, clause (iix) or (y) below) shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, (iii) shall be limited in scope to the disputed issues become final and amounts specified by Sellers (each such issue, an “Objection”) in the Objection Notice, and (iv) shall, with respect to each Objection, make its determination in favor of the position set forth by either Purchaser or Sellers. The parties shall instruct the Independent Accountant to render its decision within 30 days of the engagement, and such decision shall be binding on the parties hereto on the earlier of (x) the date the Purchasers and the Sellers’ Representative resolve in writing any difference they have with respect to the matters specified in the Notice of Disagreement or (y) the date all disputed matters are finally resolved in writing by the Accounting Firm.
(c) During the 15 day period following the delivery of a Notice of Disagreement that complies with the preceding paragraph, the Purchasers and the Sellers’ Representative shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. During such period each party and its independent auditors shall be permitted to review and make copies reasonably required of (1) the working papers of the other party and, if relevant, the party’s designated independent accountants relating to the preparation of the Post-Closing Adjustment Statement or the Notice of Disagreement and (2) any other supporting documentation relating to the preparation of the Post-Closing Adjustment Statement or the Notice of Disagreement. If, at the end of such 15 day period, the differences as specified in the Notice of Disagreement are not resolved, an independent public accounting firm to be mutually agreed to in writing by both the Purchasers and the Sellers’ Representative (the “Accounting Firm”) shall review and resolve any and all matters which remain in dispute and which are properly included in the Notice of Disagreement. In resolving any such disputed items, the Accounting Firm (x) shall be bound by the provisions of this Section 2.07 and the definitions of Available Cash, Company Debt, Final Net Working Capital and Final Net Working Capital Adjustment. Purchaser and Sellers shall each pay their own costs associated with this dispute and shall split the costs of the Independent Accountant.
2.5.4 Subject to (i) the determination of the Final Net Working Capital and the Capital, Final Net Working Capital Adjustment and Transactions Expenses, and the definitions included in such definitions, (iiy) shall be limited in its decision with regard to each disputed item to the provisions maximum amount claimed by the Purchasers or the Sellers’ Representative and the minimum amount claimed by the Purchasers or the Sellers’ Representative regarding such disputed item, and limited to the materials submitted by the Purchasers or the Sellers’ Representative and shall not conduct any independent investigation, and (z) shall limit its review solely to such disputed items and whether the Post-Closing Adjustment Statement has been prepared in accordance with this Section 2.5.52.07. The Sellers’ Representative and the Purchasers shall instruct the Accounting Firm to render a decision resolving the matters in dispute within 15 days following the submission of such matters to the Accounting Firm. The decision of the Accounting Firm with respect to such disputed items shall be final and binding upon the Purchasers and the Seller Parties (and precludes the bringing of any Proceeding, if such Final Net Working Capital is more other than $XXXX Proceedings to enforce the Accounting Firm’s decision in accordance with this Agreement) and the Post-Closing Adjustment Statement shall be revised as necessary to reflect the Accounting Firm’s decisions. The fees and disbursements of the Accounting Firm and the reasonable attorneys’ fees and expenses of the Purchasers and the Sellers’ Representative relating to the disputes submitted to the Accounting Firm shall be borne (A) by the “Upper Target”Sellers’ Representative (on behalf of the Sellers) or less than $XXXX in that proportion equal to a fraction (the “Lower Target”expressed as a percentage), the Purchase Price shall be adjusted up, dollar for dollar, for each dollar in excess numerator of the Upper Target or adjusted down, dollar for dollar, for each dollar below the Lower Target (such concept hereinafter referred to as the “Working Capital Range”). If the Final Net Working Capital which is within the Working Capital Range, including, if the Final Net Working Capital equals the Upper Target or equals the Lower Target, then there shall be no adjustment equal to the Purchase Price. For example purposes only, (i) if the Final Net Working Capital is $XXXX, the Purchase Price would be increased disputed amount claimed by $XXXX, (ii) if the Final Net Working Capital is $XXXX, then the Purchase Price would be decreased by $XXXX, and (iii) if the Final Net Working Capital is $XXXX, there would no adjustment to the Purchase Price.
2.5.5 Within five (5) business days after the Final Net Working Capital and the Final Net Working Capital Adjustment are deemed final and binding as provided in this Section 2.5, the following shall occur: (i) If the Final Net Working Capital Adjustment exceeds the Upper Target, Purchaser shall pay to Sellers such excess plus the NWC Holdback Amount, by wire transfer of immediately available funds to an account or accounts that Sellers shall designate in writing to Purchaser (“Sellers Designated Account”), or (ii) Subject to the remainder of this Section 2.5.5, if the Final Net Working Capital Adjustment is less than the Lower Target (a “Working Capital Deficit”), Purchaser shall disburse the NWC Holdback Amount less the Working Capital Deficit to the Sellers Designated Account. If the available NWC Holdback Amount is insufficient to pay the entire amount of the Working Capital Deficit, the Sellers, severally but not jointly’ Representative minus the total disputed amount determined by the Accounting Firm, and the Principalsdenominator of which is equal to the total disputed amount claimed by the Sellers’ Representative minus the amount claimed by the Purchasers and (B) by the Purchasers in that proportion equal to a fraction (expressed as a percentage) equal to one minus the fraction described in clause (A). For example, severally and not jointly, in accordance with each Principal’s Pro Rata Share if (as defined belowx) (provided the Sellers’ Representative claims that Young a disputed item should be $5,000,000 and the Trusts shall Purchasers claim that such disputed item should be jointly $4,000,000, (y) the Accounting Firm determines that such disputed item should be $4,600,000 and severally liable for (z) such fees, disbursements and expenses are $50,000, then (A) the portion Sellers’ Representative (on behalf of the Working Capital deficit attributable to Sellers) shall pay $20,000 (40%) and (B) the Trusts or YoungPurchasers shall pay $30,000 (60%), shall promptly pay to Purchaser the amount by which the Working Capital Deficit exceeds the NWC Holdback Amount by wire transfer of immediately available funds to the account designated in writing by Purchaser, and neither the Sellers nor the Principals shall have any right to the NWC Holdback Amount. For an avoidance of doubt, any adjustments to the Purchase Price caused by the Final Net Working Capital Adjustment shall be controlled by Section 2.5.4.
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Final Net Working Capital Adjustment. 2.5.1 Within 30 Subject to the resolution of any disputes pursuant to Section 1.9(g), within one hundred twenty (120) calendar days after the Closing Date, Purchaser shall deliver to Sellers (i) a balance sheet date of receipt by the Shareholder Representative of the Business as of 12:01 a.m. Portland, Oregon time on the Post-Closing Date (the “Closing Balance Sheet”), which shall be prepared in accordance with the provisions of this Agreement, GAAP, and the Sample Calculation, and (ii) based on the Closing Balance Sheet, a calculation of the proposed final Net Working Capital as of the Closing Date (the “Proposed Final Net Working Capital”), plus Purchaser’s proposed adjustment, if any, to the Purchase Price in accordance with this Section 2.5 (the “Proposed Final Net Working Capital Adjustment”), which shall be calculated in a manner consistent with the Sample Calculation and the Working Capital Range as more particularly described in this Section 2.5. Sellers shall give Purchaser full and timely access to financial and accounting information and other documentation of Sellers so that Purchaser can calculate the Proposed Final Net Working Capital.
2.5.2 If Sellers do not accept the Closing Balance Sheet or the calculation of the Proposed Final Net Working Capital Adjustment (including the calculation of the Proposed Final Net Working Capital) prepared and delivered by Purchaser, Sellers shall give written notice (the “Objection Notice”) to Purchaser within 30 days after Sellers’ receipt thereof. During such 30-day period, Purchaser shall give Sellers full and timely access to financial and accounting information and other documentation used by Purchaser in calculating the Proposed Final Net Working Capital, so that Sellers can verify the Proposed Final Net Working Capital calculations. Sellers shall be deemed to have accepted the Closing Balance Sheet and the computation of the Proposed Final Net Working Capital Adjustment of Purchaser to the extent Sellers have not by then given Purchaser an Objection Notice specifying in reasonable detail the basis for each objection, and Purchaser’s Proposed Final Net Working Capital and Final Net Working Capital Adjustment shall be the “Final Net Working Capital” and “Final Net Working Capital Adjustment,” respectively.
2.5.3 If Sellers reject the Proposed Final Net Working Capital and Proposed Final Net Working Capital Adjustment, Sellers and Purchaser shall use commercially reasonable efforts to resolve such dispute within 30 days after delivery of Sellers’ Objection Notice. If Sellers and Purchaser are unable to resolve any disagreement within 30 days after delivery of Sellers’ Objection Notice, the parties shall engage a mutually agreed upon independent accountant to resolve the issues in dispute (the “Independent Accountant”), acting as an expert and not as an arbitrator. The Independent Accountant (i) shall apply accounting principles, in accordance with Section 2.2, to the issues at hand, (ii) shall not have the power to alter, modify, amend, add to or subtract from any term or provision of this Agreement, (iii) shall be limited in scope to the disputed issues and amounts specified by Sellers (each such issue, an “Objection”) in the Objection Notice, and (iv) shall, with respect to each Objection, make its determination in favor of the position set Statement setting forth by either Purchaser or Sellers. The parties shall instruct the Independent Accountant to render its decision within 30 days of the engagement, and such decision shall be binding on the parties and shall be the Final Net Working Capital and Final Net Working Capital Adjustment. Purchaser and Sellers shall each pay their own costs associated with this dispute and shall split the costs of the Independent Accountant.
2.5.4 Subject to (i) the determination of the Final Net Working Capital and the Final Net Working Capital Adjustment and (ii) the provisions in Section 2.5.5and, if such Final Net Working Capital is more than $XXXX (the “Upper Target”) or less than $XXXX (the “Lower Target”)applicable, the Purchase Price shall be adjusted up, dollar for dollar, for each dollar in excess of the Upper Target or adjusted down, dollar for dollar, for each dollar below the Lower Target (such concept hereinafter referred to as the “Working Capital Range”). If the Final Net Working Capital is within the Working Capital Range, including, if the Final Net Working Capital equals the Upper Target or equals the Lower Target, then there shall be no adjustment to the Purchase Price. For example purposes only, (i) if the Final Net Working Capital is $XXXX, the Purchase Price would be increased by $XXXX, (ii) if the Final Net Working Capital is $XXXX, then the Purchase Price would be decreased by $XXXX, and (iii) if the Final Net Working Capital is $XXXX, there would no adjustment to the Purchase Price.Papers:
2.5.5 Within five (5) business days after the Final Net Working Capital and the Final Net Working Capital Adjustment are deemed final and binding as provided in this Section 2.5, the following shall occur: (i) If the Final Net Working Capital Adjustment exceeds is greater than the Upper TargetEstimated Net Working Capital, Purchaser shall pay to Sellers such excess plus then the NWC Holdback Amount, Initial Cash Merger Consideration will be adjusted upward on a dollar-for-dollar basis by wire transfer of immediately available funds to an account or accounts the amount that Sellers shall designate in writing to Purchaser (“Sellers Designated Account”), or (ii) Subject to the remainder of this Section 2.5.5, if the Final Net Working Capital Adjustment is less than the Lower Target (a “Working Capital Deficit”), Purchaser shall disburse the NWC Holdback Amount less the Working Capital Deficit to the Sellers Designated Account. If the available NWC Holdback Amount is insufficient to pay the entire amount of the Working Capital Deficit, the Sellers, severally but not jointly, and the Principals, severally and not jointly, in accordance with each Principal’s Pro Rata Share (as defined below) (provided that Young and the Trusts shall be jointly and severally liable for the portion of the Working Capital deficit attributable to the Trusts or Young), shall promptly pay to Purchaser the amount by which the Working Capital Deficit exceeds the NWC Holdback Amount by wire transfer of immediately available funds to the account designated in writing by Purchaser, and neither the Sellers nor the Principals shall have any right to the NWC Holdback Amount. For an avoidance of doubt, any adjustments to the Purchase Price caused by Estimated Net Working Capital.
(ii) If the Final Net Working Capital Adjustment is less than the Estimated Net Working Capital, then the Initial Cash Merger Consideration will be adjusted downward on a dollar-for-dollar basis by the amount that the Estimated Net Working Capital exceeds the Final Net Working Capital.
(iii) If an upward adjustment to the Initial Cash Merger Consideration is required to be made in accordance with this Section 1.9(b), Buyer shall pay to the Shareholder Representative for distribution to the Selling Shareholders (in accordance with each Selling Shareholder’s Ownership Percentage) such upward adjustment in accordance with Section 1.9(h). If a downward adjustment to the Initial Cash Merger Consideration is required to be made in accordance with this Section 1.9(b), Buyer shall be controlled entitled to receive, and the Escrow Agent shall deliver to Buyer, such downward adjustment in accordance with Section 1.9(h). Any adjustment in Section 1.9(b) is referred to as the “Final Net Working Capital Adjustment.”
(iv) The mechanisms for dispute resolution provided for in Section 1.9(g) shall govern any dispute as to the Final Net Working Capital Adjustment.
(v) Notwithstanding any other provision of this Agreement, the amount of any Outstanding Residential Receivables included in the Estimated Net Working Capital that are not collected by Section 2.5.4the Surviving Corporation within ninety (90) days of Closing shall reduce, dollar-for-dollar, the Final Net Working Capital.
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