Post-Closing Adjustment of Purchase Price. (a) During the 60 days after the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the Seller and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller the Working Capital Schedule certified by an officer of the Buyer that it has been prepared in accordance with the requirements of Section 2.9. (b) During the 20 Business Day period following the Seller’s receipt of the Working Capital Schedule, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9. (c) During the ten-Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party. (d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows: (i) if the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Final Working Capital and the Target Working Capital Amount; and (ii) if the Target Working Capital Amount is greater than the Final Working Capital as finally determined pursuant to this Section 2.9, the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Working Capital Amount and the Final Working Capital. (e) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Andrew Corp), Asset Purchase Agreement (Ems Technologies Inc)
Post-Closing Adjustment of Purchase Price. The Purchase Price shall be subject to adjustment after the Closing as specified in this Section 2.4:
(a) During the 60 As promptly as practicable, but in any event within ninety (90) calendar days after following the Closing Date, Seller shall deliver to Buyer (i) the Buyer shall prepare Final Balance Sheet (the Working Capital Schedule. The Buyer shall consult with the cost of preparing such balance sheet to be borne equally between Seller and Buyer) and (ii) the parties Final Statement of Working Capital. Seller shall cooperate make reasonably available to Buyer all books and records used in connection with one another in the preparation of the Final Balance Sheet and the Final Statement of Working Capital Scheduleand Seller’s and Seller’s Independent Accountants’ work papers thereon, if any. Within 60 days after the Closing Date, the Buyer shall deliver make reasonably available to the Seller the Working Capital Schedule certified and its Representatives all books and records of Company and Company Subsidiaries as reasonably required by an officer Seller in connection with Seller’s preparation of the Buyer that it has been prepared in accordance with the requirements Final Balance Sheet and Final Statement of Section 2.9Working Capital.
(b) During The Final Statement of Working Capital delivered by Seller to Buyer shall be deemed to be and shall be final, binding and conclusive on the 20 parties hereto; provided, however, that Buyer may dispute any amounts reflected on the Final Statement of Working Capital, but only on the basis that the amounts reflected on the Final Statement of Working Capital were not determined in accordance with GAAP applied on a basis consistent with the preparation of Company’s financial statements for the year ended December 31, 2005; provided further, however, that Buyer shall have notified Seller in writing of each disputed item (the “Dispute Notice”), specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within thirty-five (35) Business Day period following the SellerDays of Buyer’s receipt of the Final Statement of Working Capital Schedule(the “Final Adjustment Date”). In the event of such a dispute, the Seller and Buyer shall cooperate with the attempt to reconcile their differences in good faith. If Seller and its Representatives Buyer are unable to provide reach a resolution to each disputed item within ten (10) Business Days after receipt by Seller of the Dispute Notice, Seller’s Independent Accountants and Buyer’s Independent Accountants shall attempt to reconcile their differences, and any resolution by them with as to any information used in preparing disputed amounts shall be final, binding and conclusive on the Working Capital Schedule reasonably requested parties hereto. If Seller’s Independent Accountants and Buyer’s Independent Accountants are unable to reach a resolution as to all disputed amounts within ten (10) Business Days after referral of the dispute by the Seller and its Representatives Buyer to Seller’s Independent Accountants and reasonably available Buyer’s Independent Accountants, Seller’s Independent Accountants and Buyer’s Independent Accountants shall submit the items remaining in dispute for resolution to the Independent Accounting Firm, which shall, within twenty (20) Business Days after such submission, determine and report to Seller and Buyer upon such remaining disputed items, and such report shall be final, binding and conclusive on Seller and Buyer. The Working Capital Schedule shall become final fees and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination disbursements of the Independent Accounting Firm shall be accompanied by a certificate allocated between Seller and Buyer in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that it reached is unsuccessfully disputed by each such determination in accordance with party (as finally determined by the provisions Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. In acting under this Section 2.9. The Agreement, Seller’s Independent Accountants, Buyer’s Independent Accountants and the Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling entitled to act, such other independent public accounting firm as the privileges and immunities of arbitrators.
(c) The Final Statement of Working Capital shall be agreed in writing by deemed final for the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions purposes of this Section 2.9 2.4 upon the earliest of (A) the failure of Buyer to deliver a Dispute Notice to Seller within the range thirty-five (35) Business Days of the difference between Final Adjustment Date, and (B) the Buyer’s position with respect thereto and the Seller’s position with respect theretoresolution of all disputes, pursuant to Section 2.4(b). The Seller and the Buyer agree that judgment may be entered upon the written determination Within three (3) Business Days of the Independent Accounting Firm in any court referred to in Section 10.8. The costs Final Statement of any dispute resolution pursuant to this Section 2.9(c)Working Capital being deemed final, including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, a Purchase Price adjustment shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, made as follows:
(i) if in the event that the Reference Working Capital exceeds the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital AmountCapital, then the Purchase Price shall be adjusted upwards downward in an amount equal to such excess, and Seller shall, within three (3) Business Days of such determination, pay such amount (or the difference between applicable portion thereof not then subject to any dispute pursuant to Section 2.4(b)) to Buyer in Escrow Shares (valued at the Final Working Capital SBA Average Closing Price) and/or cash and shall authorize the Target Working Capital AmountEscrow Agent to act accordingly; and
(ii) if in the Target Working Capital Amount is greater than event that the Final Working Capital as finally determined pursuant to this Section 2.9exceeds the Reference Working Capital, then the Purchase Price shall be adjusted downwards upward in an amount equal to the difference between the Target Working Capital Amount and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Sellersuch excess, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the BuyerBuyer shall, within five three (3) Business Days after the Final Working Capital becomes final, the amount of such difference determination, pay such excess (or the applicable portion thereof not then subject to any dispute pursuant to Section 2.4(b)) to Seller by wire transfer in immediately available funds to an account designated by Seller in U.S. dollars. Amounts writing.
(d) Any payment required to be paid made by Seller or Buyer pursuant to this Section 2.9(e) 2.4 shall bear interest from the Closing Date through the date of payment at the rate of interest publicly announced by Citibank N.A. or any successor thereto in New York, New York from time to time as its base rate from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment dateplus 2%.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Sba Communications Corp), Stock Purchase Agreement (Sba Communications Corp)
Post-Closing Adjustment of Purchase Price. (a) During the 60 Within sixty (60) days after the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the Seller prepare, or cause to be prepared, and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller a written statement (the “Closing Statement”) that shall set forth a calculation of the actual Net Working Capital Schedule certified by an officer as of 11:59 p.m. on the Buyer that it has been day immediately prior to the Closing Date (the “Closing Net Working Capital”), prepared in accordance with the requirements Balance Sheet Principles and based exclusively on the facts and circumstances as they existed prior to the Closing, excluding the effects of Section 2.9any event, act, change in circumstances or similar development arising or occurring on or after the Closing Date; provided, however, that any Current Liabilities for which the Seller becomes obligated as a result of the consummation of the transactions contemplated hereby, if any, shall be included in the calculation of the Closing Net Working Capital.
(b) During the 20 twenty (20) Business Day period following the Seller’s receipt of the Working Capital ScheduleClosing Statement, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule Closing Statement reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule Closing Statement shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-ten (10) Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-ten (10) Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten (10) Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and Disagreement, the amount Closing Statement (including the calculation of the Final Closing Net Working Capital, the amount ) so determined shall be final and binding on the Parties parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten (10) Business Day period, the Seller and the Buyer shall submit, in writing, to an a mutually acceptable independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount calculation of the Final Closing Net Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount calculation of the Final Closing Net Working Capital, which determination shall be final and binding on the Parties parties for all purposes hereunder. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the parties in accordance with the standards set forth in this Section 2.9 within the range of the difference between Buyer’s position with respect thereto and the Seller’s position with respect thereto. The determination of the Independent Accounting Firm shall be based solely on the briefs submitted by the parties and not on independent review, and shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 twenty (20) Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment Judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.810.9. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party party incurred in connection with their preparation or review of the Closing Statement (including the computation of the Closing Net Working Capital Schedule Capital) and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyparty.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Closing Net Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, the Purchase Price shall be adjusted upwards in an amount not equal to the difference between the Final Preliminary Net Working Capital and as set forth on the Target Working Capital Amount; andPreliminary Closing Statement, as follows:
(iii) if for purposes of this Agreement, “Net Adjustment Amount” means an amount, which may be positive or negative, equal to the Target Working Capital Amount is greater than the Final Closing Net Working Capital as finally determined pursuant to this Section 2.9, 2.9 minus the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Preliminary Net Working Capital Amount and as set forth on the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Preliminary Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date.Statement;
Appears in 2 contracts
Samples: Asset Purchase Agreement (New Media Investment Group Inc.), Asset Purchase Agreement (A. H. Belo Corp)
Post-Closing Adjustment of Purchase Price. There shall be a post-closing adjustment to the Purchase Price (such adjustment, the “Post Closing Adjustment”) The Post-Closing Adjustment shall be payable by either (x) Buyer and Company or (y) Seller (as applicable) and shall be determined, without duplication, by adding:
(a) During the 60 sum of unpaid liabilities existing on the Closing Date to trade vendors which the Company will be required to pay on the first periodic payment date applicable to such trade vendor relationship occurring after the Closing Date, with each of such liabilities to be reduced pro rata to account for the period of time within the applicable billing period that the Interests were owned by Buyer; plus
(b) the sum of current employee expenses for days worked through the Closing Date to the extent unpaid by Company prior to the Closing Date or Seller (or any of Seller’s Affiliates) after the Closing Date; plus
(c) to the extent lease payments are made in arrears, the sum of all lease payments due and payable on the next scheduled payment date under the applicable lease, with each of such payments to be reduced pro rata to account for the period of time within the applicable lease period that the Interests were owned by Buyer; plus
(d) the sum of all liabilities to counterparties existing on the Closing Date with respect to moneys provided to Company by customers for transfer to such counterparties to the extent such moneys are actually timely paid to such counterparties; minus
(e) the sum of all amounts paid in advance by Seller or any of Seller’s Affiliates to trade vendors, with each of such amounts to be reduced pro rata to account for the portion of time that the Interests were owned by Seller; minus
(f) the sum of all credits due from counterparties to which the Company has forwarded payments on behalf of its customers; minus
(g) to the extent lease payments are made in advance of the Closing Date for rental periods ending after the Closing Date, the Buyer shall prepare sum of all such amounts paid in advance for the Working Capital Schedule. The Buyer shall consult with the Seller and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days rental periods ending after the Closing Date, the Buyer shall deliver to the Seller the Working Capital Schedule certified by an officer of the Buyer that it has been prepared in accordance with the requirements of Section 2.9.
(b) During the 20 Business Day period following the Seller’s receipt of the Working Capital Schedule, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end each of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Final Working Capital and the Target Working Capital Amount; and
(ii) if the Target Working Capital Amount is greater than the Final Working Capital as finally determined pursuant to this Section 2.9, the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Working Capital Amount and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts payments to be paid pursuant reduced pro rata to this Section 2.9(e) shall bear interest from account for the Closing Date to period of time that the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 Interests were owned by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment dateSeller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Community Choice Financial Inc.)
Post-Closing Adjustment of Purchase Price. (ai) During the 60 Within sixty (60) days after the Closing DateClosing, the Buyer shall prepare cause to be prepared, a balance sheet as of the Closing Date (the “Closing Balance Sheet”) for the purpose of reconciling the Working Capital Schedule. The Buyer shall consult with as of the Seller and the parties shall cooperate with one another in the preparation of Closing, against the Working Capital Scheduleas reported on the balance sheet delivered as part of the Business Financial Statements. Within 60 days after The Closing Balance Sheet shall be prepared in a manner consistent with the Closing Dateprocedures used to prepare the Business Financial Statements; provided, the Buyer however, that adjustment shall deliver to the Seller be made for rebates and credits.
(ii) If the Working Capital Schedule certified by an officer determination as of the Buyer that it has been prepared Closing would result in accordance with the requirements of Section 2.9.
(b) During the 20 Business Day period following the Seller’s receipt of the Working Capital Schedule, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts an adjustment in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated Purchase Price in accordance with this Section 2.92.4, Buyer shall deliver the Closing Balance Sheet to Seller promptly upon its completion. The Closing Balance shall be binding and conclusive upon, and deemed accepted by, Seller unless Seller shall have notified Buyer in writing of any objections thereto consistent with the provisions of this Section 2.4 within thirty (30) days after receipt thereof. The written notice under this Section 2.4 shall specify in reasonable detail each item on the Closing Balance Sheet that Seller disputes, and a summary of Seller’s reasons for such dispute.
(ciii) During Disputes between Buyer and Seller relating to the ten-Business Day period following delivery Closing Balance Sheet which cannot be resolved by them within thirty (30) days after receipt by Buyer of a Notice the notice referred to in Section 2.4 (ii) above may be referred no later than thirty (30) days after such receipt for decision at the insistence of Disagreement either party to KPMG, LLP. If KPMG, LLP is unavailable, then Buyer and Seller shall select an independent nationally recognized accounting firm to decide the matter (KPMG, LLP or such other firm being referred to herein as the “Auditor”). The procedures applied by the Seller Auditor to resolve the dispute hereunder shall be consistent with the procedures established by the Parties prior to the BuyerClosing in connection with the preparation of the Business Financial Statements and the Auditor shall not alter such accounting practices, if anyprinciples and policies to be applied to the Closing Balance Sheet. To the extent the Auditor determines the procedures established by the Parties are incomplete or inadequate to resolve any particular dispute in the Closing Balance Sheet, the Parties in good faith Auditor shall seek establish procedures giving due regard to the intention of the parties to resolve disputes as quickly, efficiently and inexpensively as possible, which procedures may be, but need not be, those proposed by either party. The Parties shall then submit evidence in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate accordance with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer procedures established, and the Seller within such ten Business Day period Auditor shall be final and binding with respect decide the dispute in accordance therewith. The Auditor’s decision on any matter referred to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined it shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range fee of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, Auditor shall be borne by Seller and Buyer in equal portions.
(iv) The Closing Balance Sheet shall become final and binding (the “Final Closing Balance Sheet”) upon the Parties in inverse proportion upon the earlier of (a) the failure by Seller to object thereto within the period permitted under clause (ii) this Section 2.4 above, (b) the agreement between Buyer and Seller with respect thereto or (c) the decision by the Auditor with respect to any disputes under clause (iii) this Section 2.4 above.
(v) In the event the Working Capital, as they may prevail determined on the matters resolved by the Independent Accounting FirmFinal Closing Balance Sheet, which proportionate allocation is less than $1,079,416, such deficit amount shall be calculated on an aggregate basis based paid by Seller to Buyer within ten (10) days after completion of the Final Closing Balance Sheet. In the event the Working Capital, as determined on the relative dollar values Final Closing Balance Sheet, is greater than $1,079,416, such excess amount shall be paid by Buyer to Seller within ten (10) days after completion of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submittedFinal Closing Balance Sheet. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of If the Working Capital Schedule and preparation or review determination as of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, Closing would not result in an adjustment in the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Final Working Capital and the Target Working Capital Amount; and
accordance with this clause (iiv) if the Target Working Capital Amount is greater than the Final Working Capital as finally determined pursuant to of this Section 2.9, the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Working Capital Amount and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date Amount2.4, then the Buyer Parties shall pay have no further obligations to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to each other under this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date2.4.
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Samples: Asset Purchase Agreement (Cardiodynamics International Corp)
Post-Closing Adjustment of Purchase Price. (a) During the 60 days after the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the Seller and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller Sellers a statement (the “Closing Adjustment Statement”) setting forth the Buyer’s calculation of (i) the Closing Net Working Capital Schedule certified by an officer Capital, (ii) the Closing Debt and (iii) the Section 338(h)(10) Cost; provided, that no purchase accounting adjustments in respect of the Buyer that it has been prepared in accordance with the requirements of Section 2.9transactions contemplated by this Agreement shall be made.
(b) During the 20 Business Day period following the Seller’s Sellers’ receipt of the Working Capital ScheduleClosing Adjustment Statement, the Buyer shall provide the Sellers and their officers, directors, principals, employees who need to know, advisors, auditors, agents, bankers and other representatives (collectively, “Representatives”) with access to the working papers of the Buyer relating to the Closing Adjustment Statement, and the Buyer shall cooperate with the Seller Sellers and its their Representatives to provide them with any other information used in preparing the Working Capital Schedule Closing Adjustment Statement reasonably requested by the Seller Sellers and its Representatives and reasonably available to the Buyertheir Representatives. The Working Capital Schedule Closing Adjustment Statement shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers Sellers deliver to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller Sellers shall be deemed to have agreed with all items and amounts in the Working Capital Schedule Closing Adjustment Statement not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with pursuant to Section 2.9(c2.3(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule Closing Adjustment Statement not being calculated in accordance with this Section 2.9Agreement and Schedule 1.1(b) of the Disclosure Letter.
(c) During the ten-10 Business Day period following delivery of a Notice of Disagreement by the Seller Sellers to the Buyer, if any, the Parties parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-10 Business Day period, the Seller Sellers shall provide the Buyer and its Representatives with access to the working papers of the Sellers relating to such Notice of Disagreement, and the Sellers and their auditors shall cooperate with the Buyer and its Representatives to provide them with any other information used in preparing the preparation of such Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Sellerauditors. Any disputed items resolved in writing between the Buyer Sellers and the Seller Buyer within such ten 10 Business Day period shall be final and binding with respect to such items, and if the Seller Sellers and the Buyer agree in writing on the resolution of each disputed item specified by the Seller Sellers in the Notice of Disagreement and Disagreement, the amount of the Final Closing Net Working Capital, the amount Closing Debt and/or the Section 338(h)(10) Cost so determined shall be final and binding on the Parties parties for all purposes hereunder. If the Seller Sellers and the Buyer have not resolved all such differences by the end of such ten 10 Business Day period, the Seller Sellers and the Buyer shall submit, in writing, to an a national independent public accounting firm mutually acceptable to the parties (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Closing Net Working Capital, the Closing Debt and/or the Section 338(h)(10) Cost, as applicable, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Closing Net Working Capital, the Closing Debt and/or the Section 338(h)(10) Cost, as applicable, which determination shall be final and binding on the Parties parties for all purposes hereunder. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the parties in accordance with the provisions of this Section 2.3 within the range of the difference between the Buyer’s position with respect thereto and the Sellers’ position with respect thereto. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.92.3. The Independent Accounting Firm shall be Deloitte & Touche PricewaterhouseCoopers or, if such firm is unable or unwilling to act, such other “Big 4” independent public accounting firm as shall be agreed in writing by the Seller Sellers and the Buyer. The Seller Sellers and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment Judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8of competent jurisdiction. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereofFirm, shall be borne by the Parties parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the auditors and other Representatives of each Party party incurred in connection with their preparation or review of the Working Capital Schedule Closing Adjustment Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyparty.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Closing Net Working Capital as finally determined pursuant to this Section 2.9 2.3 is greater than the Target Estimated Closing Net Working Capital AmountCapital, the Purchase Price Buyer shall be adjusted upwards in an amount equal pay such excess to the difference between the Final Working Capital and the Target Working Capital Amount; andSellers in accordance with Section 2.3(e);
(ii) if the Target Working Capital Amount is greater than the Final Closing Net Working Capital as finally determined pursuant to this Section 2.92.3 is less than the Estimated Closing Net Working Capital, the Purchase Price Sellers shall be adjusted downwards in an amount equal pay such deficiency to the difference between the Target Working Capital Amount and the Final Working Capital.Buyer in accordance with Section 2.3(e);
(eiii) If if the Adjusted Purchase Price Closing Debt as finally determined pursuant to this Section 2.3 is more less than the Estimated Closing Date AmountDebt, then the Buyer shall pay such deficiency to the Seller, and Sellers in accordance with Section 2.3(e);
(iv) if the Adjusted Purchase Price Closing Debt as finally determined pursuant to this Section 2.3 is greater than the Estimated Closing Debt, the Sellers shall pay such excess to the Buyer in accordance with Section 2.3(e);
(v) if the Section 338(h)(10) Cost as finally determined pursuant to this Section 2.3 is less than the Closing Date AmountEstimated Section 338(h)(10) Cost, the Seller Sellers shall pay such deficiency to the Buyer, within five Business Days after Buyer in accordance with Section 2.3(e); and
(vi) if the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid Section 338(h)(10) Cost as finally determined pursuant to this Section 2.9(e2.3 is greater than the Estimated Section 338(h)(10) Cost, the Buyer shall bear interest from the Closing Date pay, subject to the date of limitations set forth in Section 6.7, such payment at an annual rate equal excess to the three-month LIBOR rate Sellers in effect as accordance with Section 2.3(e). If a Notice of the third Business Day prior Disagreement has been delivered to the date Buyer by the payment is made Sellers, any payments due under this Section 2.3(d) as to which agreement has been reached shall be paid in accordance with Section 2.3(e) and any payments due under this Section 2.3(d) as to which agreement has not been reached shall be paid within ten (10) Business Days following, and in accordance with, the “Agreed Rate”Independent Accounting Firm’s decision with respect to the disputed matters and otherwise in accordance with Section 2.3(e). Payments in respect The amount of any adjustment determined under this Section 2.9(e2.3(d) shall be made within three Business Days of final determination of the Final Working Capital pursuant treated as an adjustment to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment datePurchase Price for Tax purposes.
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Post-Closing Adjustment of Purchase Price. The Purchase Price shall be subject to further adjustment after the Closing as specified in this Section 2.5:
(a) During the 60 As promptly as practicable, but in any event within sixty (60) calendar days after following the Closing Date, Purchaser shall deliver to Seller the Buyer shall prepare Closing Balance Sheet, together with a certificate of Purchaser certifying that the Working Capital Schedule. The Buyer shall consult Closing Balance Sheet was prepared in accordance with the Seller and the parties shall cooperate GAAP applied on a basis consistent with one another in the preparation of the Reference Balance Sheet.
(b) Subject to clause (ii) of this Section 2.5(b), the Closing Balance Sheet delivered by Purchaser to Seller shall be deemed to be and shall be final, binding and conclusive on the parties hereto.
(i) Seller may dispute any amounts reflected on the Closing Balance Sheet to the extent the net effect of such disputed amounts in the aggregate would affect the Adjusted Working Capital Schedule. Within 60 days after but only on the basis that the amounts reflected on the Closing Date, the Buyer shall deliver to the Seller the Working Capital Schedule certified by an officer of the Buyer that it has been Balance Sheet were not prepared in accordance with the requirements of Section 2.9.
(b) During same GAAP applied on a basis consistent with the 20 Business Day period following the Seller’s receipt preparation of the Working Capital ScheduleReference Balance Sheet; provided, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereofhowever, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The that Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties in good faith shall seek to resolve notified Purchaser in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and item, specifying the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining thereof in dispute and the amount of the Final Working Capitalsetting forth, in reasonable detail, the
(ii) In acting under this Agreement, Purchaser's Accountants, Seller's Accountants and the Independent Accounting Firm shall make a written determination as be entitled to each such disputed item the privileges and the amount immunities of the Final Working Capital, which determination arbitrators.
(c) The Closing Balance Sheet shall be deemed final and binding on for the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by 2.5 upon the earlier of (1) the failure of the Seller and timely to notify Purchaser of a dispute, (2) the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions resolution of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution all disputes, pursuant to this Section 2.9(c2.5(b)(ii), including by Purchaser's Accountants and Seller's Accountants, and (3) the fees and expenses resolution of the Independent Accounting Firm and of any enforcement of the determination thereofall disputes, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved pursuant to Section 2.5(b)(ii), by the Independent Accounting Firm. Within three (3) Business Days of the Closing Balance Sheet being deemed final, which proportionate allocation a Purchase Price adjustment shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, made as follows:
(i) if In the Final event that the Agreed Estimated Adjusted Working Capital or the Default Estimated Adjusted Working Capital, as finally determined pursuant to this Section 2.9 is greater than the Target case may be, exceeds the Adjusted Working Capital Amountreflected on the final Closing Balance Sheet, then the Purchase Price shall be adjusted upwards downward in an amount equal to the difference between the Final full amount by which such Agreed Estimated Adjusted Working Capital and or Default Estimated Adjusted Working Capital, as the Target case may be, exceeds the Adjusted Working Capital Amount; andshown on the final Closing Balance Sheet. Purchaser shall deliver written notice to Seller specifying the amount of such downward adjustment of the Purchase Price, and Seller shall, within three (3) Business Days of receipt of such notice, pay such amount to Purchaser in immediately available funds.
(ii) if In the Target event that the Adjusted Working Capital Amount is greater than reflected on the Final final Closing Balance Sheet exceeds the Agreed Estimated Adjusted Working Capital or the Default Estimated Adjusted Working Capital, as finally determined pursuant to this Section 2.9the case may be, then the Purchase Price shall be adjusted downwards upward in an amount equal to the difference between full amount by which the Target Adjusted Working Capital Amount and shown on the Final final Closing Balance Sheet exceeds such Agreed Estimated Adjusted Working Capital or Default Estimated Adjusted Working Capital.
(e) If , as the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Sellercase may be, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the BuyerPurchaser shall, within five three Business Days after the Final Working Capital becomes finalof such determination, pay the amount of such difference excess to Seller by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment datefunds.
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Post-Closing Adjustment of Purchase Price. (a) During the 60 Within ninety (90) days after the Closing Date, the Buyer Purchaser shall prepare the deliver to Seller a statement of Closing Working Capital Schedule. The Buyer shall consult (“Post Closing Statement”), prepared on a basis consistent with the Seller preparation of the Balance Sheet, GAAP and the parties example set forth on Schedule 3.3 of the Disclosure Schedules, which schedule sets forth an example of the calculation of the Closing Working Capital as if the Closing Date had occurred on June 30, 2006.
(b) Seller shall cooperate with one another cause its employees and the employees of its Affiliates to assist Purchaser and its representatives in the preparation of the Working Capital Schedule. Within 60 days after the Post Closing Date, the Buyer shall deliver to the Seller the Working Capital Schedule certified by an officer of the Buyer that it has been prepared in accordance with the requirements of Section 2.9Statement.
(bc) During the 20 twenty (20) Business Day period following the Seller’s receipt of the Working Capital SchedulePost Closing Statement, Purchaser shall, and shall use its commercially reasonable efforts to cause its representatives to, provide Seller and its representatives with access to the Buyer working papers of Purchaser and its representatives relating to the Post Closing Statement and Purchaser shall cooperate with the Seller and its Representatives representatives to provide them with any other information used in preparing the Working Capital Schedule Post Closing Statement reasonably requested by the Seller and or its Representatives and reasonably available to the Buyerrepresentatives. The Working Capital Schedule Post Closing Statement shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer Purchaser written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule Post Closing Statement not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c3.4(d). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(cd) During the ten-ten (10) Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if anyPurchaser, the Parties parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-ten (10) Business Day period, Seller shall, and shall use its commercially reasonable efforts to cause its representatives to, provide Purchaser and its representatives with access to the working papers of Seller and its auditors relating to such Notice of Disagreement, and Seller and its auditors shall cooperate with the Buyer Purchaser and its Representatives representatives to provide them with any other information used in preparing the preparation of such Notice of Disagreement reasonably requested by the Buyer Purchaser or its Representatives and reasonably available to the Sellerrepresentatives. Any disputed items resolved in writing between the Buyer Seller and the Seller Purchaser within such ten (10) Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer Purchaser agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and Disagreement, the amount of the Final Closing Working Capital, the amount Capital so determined shall be final and binding on the Parties parties for all purposes hereunder. If the Seller and the Buyer Purchaser have not resolved all such differences by the end of such ten (10) Business Day period, the Seller and the Buyer Purchaser shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), ) their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Closing Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Closing Working Capital, which determination shall be final and binding on the Parties parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.93.4(d). The Independent Accounting Firm shall be Deloitte & Touche KPMG, LLP or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the BuyerPurchaser. The Seller and the Buyer Purchaser shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 twenty (20) Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties parties in accordance with the provisions of this Section 2.9 3.4 within the range of the difference between the BuyerPurchaser’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer Purchaser agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.810.3. The costs of any dispute resolution pursuant to this Section 2.9(c3.4(d), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives representatives of each Party party incurred in connection with their preparation or review of the Working Capital Schedule Post Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyparty.
(de) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”)adjusted, upwards or downwards, as follows:
(i) if the Final Closing Working Capital as finally determined pursuant to this Section 2.9 3.4 is greater than the Target Initial Closing Working Capital AmountCapital, the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Final Closing Working Capital and the Target Initial Closing Working Capital Amount; Capital, and Purchaser shall pay such amount to Seller, and
(ii) if the Target Initial Closing Working Capital Amount is greater than the Final Closing Working Capital as finally determined pursuant to this Section 2.9, 3.4 the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Initial Closing Working Capital Amount and the Final Closing Working Capital, and Seller shall pay such amount to Purchaser.
(ef) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e3.4(e) shall bear interest from the Closing Date to the date of such payment at an annual a rate equal to the three-month LIBOR rate in effect of interest from time to time announced publicly by Citibank N.A. as its prime rate, calculated on the basis of a year of 365 days and the third Business Day prior to the date the payment is made (the “Agreed Rate”)number of days elapsed. Payments in respect of this Section 2.9(e) shall be made within three (3) Business Days of final determination of the Final Closing Working Capital pursuant to the provisions of this Section 2.9 3.4 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party party entitled to such payment at least two three (3) Business Days prior to such payment date.
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Post-Closing Adjustment of Purchase Price. The Purchase Price shall be subject to adjustment after the Closing as specified in this Section 2.10:
(a) During the 60 As promptly as practicable, but in any event within 90 calendar days after following the Closing Date, the Buyer Sellers shall prepare deliver to the Working Capital Schedule. The Buyer shall consult with Purchasers (i) an audited balance sheet (the Seller "Final Balance Sheet") (the cost of such audit to be borne equally between the Sellers and the parties shall cooperate Purchaser) in respect of the Business, together with one another a report thereon of the Sellers' Accountants that such statement fairly presents in all material respects the Business at the Final Adjustment Date in conformity with U.S. GAAP applied on a basis consistent with the preparation of the Financial Statements for the fiscal year ended 1999, and (ii) a statement (the "Final Statement of Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller Capital") of the Working Capital Schedule certified by an officer in respect of the Buyer that it has been prepared Business at the Final Adjustment Date (the "Final Working Capital") as derived from the Final Balance Sheet. The Sellers shall cause the auditors to make available to the Purchaser all work papers used in accordance connection with the requirements preparation of Section 2.9the Final Balance Sheet.
(b) During the 20 Business Day period following the Seller’s receipt The Final Statement of the Working Capital Schedule, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested delivered by the Seller and its Representatives and reasonably available Sellers to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller Purchasers shall be deemed to have agreed with all items be and amounts in shall be final, binding and conclusive on the Working Capital Schedule not specifically referenced in parties hereto; provided, however, that the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement Purchaser may reference only disagreements based on mathematical errors or based on dispute any amounts reflected on the Final Statement of Working Capital, but only on the basis that the amounts reflected on the Final Statement of Working Capital Schedule were not being calculated determined in accordance with this Section 2.9.
(c) During U.S. GAAP applied on a basis consistent with the ten-Business Day period following delivery preparation of a Notice of Disagreement by the Seller to Financial Statements for the Buyerfiscal year ended 1999; provided further, if anyhowever, that the Parties in good faith Purchaser shall seek to resolve have notified the Sellers in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by (the Seller in the Notice of Disagreement and "Dispute Notice"), specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within twenty Business Days of the Purchaser's receipt of the Final Statement of Working Capital. In the event of such a dispute, the amount so determined Sellers and the Purchaser shall be final and binding on the Parties for all purposes hereunderattempt to reconcile their differences in good faith. If the Seller Sellers and the Buyer have not resolved all such differences Purchaser are unable to reach a resolution to each disputed item within ten Business Days after receipt by the end Sellers of such the Dispute Notice, the Sellers' Accountants and the Purchasers' Accountants shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the parties hereto. If the Sellers' Accountants and the Purchasers' Accountants are unable to reach a resolution as to all disputed amounts within ten Business Day periodDays after referral of the dispute by the Sellers and the U.S. Purchaser to the Sellers' Accountants and the Purchasers' Accountants, the Seller Sellers' Accountants and the Buyer Purchasers' Accountants shall submit, submit the items remaining in writing, dispute for resolution to an independent public accounting firm of international reputation mutually acceptable to the Sellers and the Purchaser (such accounting firm being referred to herein as the “"Independent Accounting Firm”"), their briefs detailing their views as which shall, within twenty Business Days after such submission, determine and report to the correct nature and amount of each item remaining in dispute Sellers and the amount of the Final Working CapitalPurchaser upon such remaining disputed items, and such report shall be final, binding and conclusive on the Independent Accounting Firm shall make a written determination as to each such disputed item Sellers and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunderPurchasers. The determination fees and disbursements of the Independent Accounting Firm shall be accompanied by a certificate allocated between the Sellers and the Purchaser in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that it reached is unsuccessfully disputed by each such determination in accordance with party (as finally determined by the provisions Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted. In acting under this Section 2.9. The Agreement, the Sellers' Accountants, the Purchasers' Accountants and the Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling entitled to act, such other independent public accounting firm as the privileges and immunities of arbitrators.
(c) The Final Statement of Working Capital shall be agreed in writing by deemed final for the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions purposes of this Section 2.9 within 2.10 upon the range earliest of (A) the failure of the difference between Purchaser to deliver a Dispute Notice to the Buyer’s position with respect thereto Sellers within twenty Business Days of the Sellers' delivery of the Final Statement of Working Capital to the Purchasers, (B) the resolution of all disputes, pursuant to Section 2.10(b), by the Sellers and the Seller’s position with respect thereto. The Seller Purchaser, (C) the resolution of all disputes, pursuant to Section 2.10(b), by the Sellers' Accountants and the Buyer agree that judgment may be entered upon Purchasers' Accountants and (D) the written determination resolution of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution all disputes, pursuant to this Section 2.9(c2.10(b), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm. Within three Business Days of the Final Statement of Working Capital being deemed final, which proportionate allocation a Purchase Price adjustment shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, made as follows:
(i) if in the event that the Reference Working Capital exceeds the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital AmountCapital, then the Purchase Price shall be adjusted upwards downward in an amount equal to the difference between the Final Working Capital such excess, and the Target Working Capital AmountSellers shall, within three Business Days of such determination, pay such amount plus the Offset Amount to the Purchaser by wire transfer in immediately available funds; and
(ii) if in the Target Working Capital Amount is greater than event that the Final Working Capital as finally determined pursuant to this Section 2.9exceeds the Reference Working Capital, then the Purchase Price shall be adjusted downwards upward in an amount equal to such excess (the difference between the Target Working Capital Amount and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date "Adjustment Amount, then the Buyer shall pay to the Seller"), and if (A) in the Adjusted Purchase Price is less than event that the Closing Date Adjustment Amount exceeds the Offset Amount, the Seller Sellers shall pay deliver written notice to the Buyer, within five Business Days after Purchaser specifying the Final Working Capital becomes final, the net amount of such difference excess, and the Purchaser shall, within three Business Days of receipt of such notice, pay such excess amount to the Sellers by wire transfer in immediately available funds funds, or (B) in U.S. dollars. Amounts the event that the Offset Amount exceeds the Adjustment Amount, the Sellers shall, within three Business Days of such determination, pay such excess to the Purchaser by wire transfer in immediately available funds.
(d) The Purchaser agrees that following the Closing through the date that payment, if any, is made pursuant to Section 2.10(c), it shall, and it shall cause the other Purchasers to, not take any actions with respect to any accounting books, records, policy or procedure on which the Final Statement of Working Capital is to be paid based that would make it impossible, impracticable or difficult to calculate Working Capital in the manner and utilizing the methods required hereby.
(e) Any payment required to be made by the Sellers or the Purchaser pursuant to this Section 2.9(e) 2.10 shall bear interest from the Closing Date through the date of payment at the rate of interest publicly announced by Citibank N.A. or any successor thereto in New York, New York from time to time as its base rate from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”)plus 2%. Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date.ARTICLE III
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (ai) During the Within 60 days after following the Closing, Seller shall, at its expense, cause to be prepared and delivered to Purchaser a statement of Acquired Assets and Assumed Liabilities as of the Closing DateDate (the "Closing Balance Sheet"), which shall have been audited by Ernst & Young LLP and from which a statement shall be derived (the Buyer "Closing Statement") which shall prepare set forth the Actual Closing Indebtedness and the Net Working Capital of the Business as of the Closing Date and, except as set forth in Section 1.3(c)(i) of the Disclosure Schedule. The Buyer , shall consult be prepared (A) in accordance with the Seller and the parties shall cooperate GAAP, (B) in a manner consistent with one another in the preparation of the Working Capital ScheduleUnaudited Balance Sheet and (C) in the form of Exhibit I hereto. Within 60 Notwithstanding the foregoing, the Closing Statement shall be prepared on the basis of the status of the Business as of the date the Closing Statement is delivered to Purchaser.
(ii) Purchaser and Purchaser's accountants shall, within 30 days after the delivery by Seller of the Closing DateStatement, complete their review of the Buyer shall deliver to Actual Closing Indebtedness and the Seller the Net Working Capital Schedule certified by an officer of as derived from the Buyer Closing Statement. In the event that it Purchaser determines that Actual Closing Indebtedness or Net Working Capital as derived from the Closing Statement has not been prepared determined in accordance with paragraph (i) above, Purchaser shall inform Seller in writing (the requirements "Purchaser's Objection"), setting forth a specific description of Section 2.9.
(b) During the basis of Purchaser's Objection and the adjustments to Actual Closing Indebtedness or Net Working Capital, as applicable, which Purchaser believes should be made, on or before the last day of such 30-day period. Seller shall then have 30 days to review and respond to Purchaser's Objection. If Seller and Purchaser are unable to resolve all of their disagreements with respect to the determination of the foregoing items within 20 Business Day period days following the completion of Seller’s receipt 's review of Purchaser's Objection, they shall refer their remaining differences to an internationally recognized firm of independent public accountants as to which Seller and Purchaser mutually agree (the "CPA Firm"), who shall, acting as experts and not as arbitrators, determine on the basis of the Working Capital Schedulestandards set forth in paragraph (i) above, the Buyer shall cooperate and only with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available respect to the Buyer. The Working Capital Schedule shall become final remaining accounting-related differences so submitted, whether and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyerwhat extent, if any, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer Actual Closing Indebtedness or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Net Working Capital, as applicable, as derived from the amount so determined shall be final and binding on the Parties for all purposes hereunderClosing Statement requires adjustment. If the Seller and Purchaser shall direct the Buyer have not resolved all such differences by the end of such ten Business Day period, the Seller and the Buyer shall submit, in writing, CPA Firm to an independent public accounting firm (the “Independent Accounting use its best efforts to render its determination within 45 days. The CPA Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which 's determination shall be final conclusive and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submittedparties hereto. The fees and disbursements of the Representatives CPA Firm shall be the responsibility of each Party incurred in connection with their preparation Purchaser if Actual Closing Indebtedness or review of the Net Working Capital Schedule and preparation or review of any Notice of DisagreementCapital, as applicable, as reflected on the Adjusted Closing Statement (as hereinafter defined) is within $50,000 of Actual Closing Indebtedness or Net Working Capital, as applicable, as reflected on the Closing Statement; otherwise, such fees and disbursements shall be borne by such Party.
(d) The Purchase Price the responsibility of Seller and Acorn. Purchaser, Seller and Acorn shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, the Purchase Price shall be adjusted upwards in an amount equal make readily available to the difference between CPA Firm all relevant nonproprietary books and records and any work papers (including those of the Final Working Capital and the Target Working Capital Amount; and
(iiparties' respective accountants) if the Target Working Capital Amount is greater than the Final Working Capital as finally determined pursuant to this Section 2.9, the Purchase Price shall be adjusted downwards in an amount equal relating to the difference between the Target Working Capital Amount Closing Statement and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference all other items reasonably requested by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date.the
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (a) During the 60 As soon as practicable, but in no event later than 90 days after following the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the cause to be prepared and delivered to Seller and the parties shall cooperate with one another in the preparation a Net Worth Statement of the Working Capital Schedule. Within 60 days after Company, as of the Closing Date, (the Buyer shall deliver “Closing Net Worth Statement”), with a certificate setting forth: (i) a calculation of the amount of the Net Worth of the Company, as of the Closing Date (the “Closing Net Worth Amount”); and (ii) the amount of any proposed adjustment to the Seller Closing Purchase Price required pursuant to Section 2.7(f), if any. The parties hereto agree and acknowledge the Working Capital Schedule certified by an officer only component of the Buyer that it has been prepared in accordance with Closing Purchase Price subject to adjustment pursuant to this Section 2.7 is the requirements Estimated Closing Net Worth Amount, and none of the Fixed Amount, the IT Purchase Price and the Deferred Tax Asset Value is subject to any post-Closing adjustment (except to the extent there may be a reduction of the IT Purchase Price pursuant to Section 2.95.12 and a reimbursement of the costs of medical and dental plans pursuant to Section 6.2).
(b) During the 20 Business Day period following the Seller’s receipt preparation of the Working Capital ScheduleClosing Net Worth Statement and the period of any review or dispute provided for in this Section 2.7, the Buyer Seller shall cooperate with Buyer and its Representatives, including by providing reasonable access to (i) all relevant information in the possession of Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Affiliates and (ii) personnel of Seller and its Representatives and Affiliates, in each case reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts necessary or useful in the Working Capital Schedule not specifically referenced in preparation of the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9Closing Net Worth Statement.
(c) During Seller shall have thirty (30) days from the ten-Business Day period following delivery date on which the Closing Net Worth Statement is delivered by Buyer to review the Closing Net Worth Statement and the certificate delivered therewith (the “Review Period”). If Seller objects to any item or amount shown or reflected in the Closing Net Worth Statement or the certificate delivered therewith, Seller shall deliver written notice of a Notice of Disagreement by the Seller their objection to Buyer on or prior to the Buyerlast day of the Review Period (a “Dispute Notice”), if anyprovided, however, Seller shall have the right to dispute the determination of any such item or amount only on the basis, and to the extent that Seller claims, that (i) such item or amount was not determined in accordance with GAAP, consistently applied or (ii) a manifest arithmetic error was committed in the calculation of any of the line items or numerical data underlying the line items on the Closing Net Worth Statement or the certificate delivered therewith. If Buyer does not receive a Dispute Notice on or prior to the last day of the Review Period, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer Closing Net Worth Statement and the Seller within such ten Business Day period certificate delivered therewith shall be final and binding with respect to such items, and if the deemed accepted by Seller and the Buyer calculation of the Closing Net Worth Amount set forth therein shall be final, binding and conclusive for purposes of determining the Purchase Price.
(d) For thirty (30) days (or such longer period as the parties may agree in writing on writing) following receipt by Buyer of a Dispute Notice (the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount “Resolution Period”), senior executives of the Final Working CapitalParties, the amount so determined shall attempt to resolve their differences arising from such objections, and any resolution by them shall be final final, binding and binding on conclusive for purposes of determining the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by Purchase Price.
(e) The parties shall use their reasonable best efforts to submit, within ten (10) days following the end of such ten Business Day periodthe Resolution Period, any objections regarding the Seller and Closing Net Worth Statement remaining in dispute at the Buyer shall submit, in writing, end of the Resolution Period (“Unresolved Disputes”) to an independent public accounting firm Ernst & Young LLP (the “Independent Accounting FirmNeutral Auditor”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, ) or if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon in writing by the Seller and the Buyer. Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter in customary form. Buyer and Seller shall cooperate with the Neutral Auditor and promptly provide all documents and information requested by the Neutral Auditor. The Seller Neutral Auditor shall be requested to promptly, and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it in any event within 20 Business Days following thirty (30) days after the submission thereofof any Unresolved Disputes thereto, render its decision in writing (the “Adjustment Report”) and finalize the Closing Net Worth Statement and determine the appropriate Closing Net Worth Amount. The Independent Accounting Firm Adjustment Report shall be authorized to resolve only those items remaining in dispute between final and binding upon the Parties in accordance with the provisions of this Section 2.9 within the range parties hereto, shall be deemed a final arbitration award that is binding on each of the difference between parties hereto, and no party shall seek further recourse to courts or other tribunals, other than to enforce the Buyer’s position with respect thereto and the Seller’s position with respect theretoAdjustment Report. The Seller and the Buyer agree that judgment Judgment may be entered upon to enforce the written determination of the Independent Accounting Firm Adjustment Report in any court referred to in Section 10.8of competent jurisdiction. The costs Buyer and Seller shall each be responsible for paying 50% of any dispute resolution pursuant to this Section 2.9(c), including the all fees and expenses relating to the work of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such PartyNeutral Auditor.
(df) The Closing Net Worth Statement and the applicable Closing Net Worth Amount regarding which (i) there has been no Dispute Notice delivered by Seller, (ii) there is no Unresolved Dispute outstanding between the Buyer and Seller, or (iii) the Neutral Advisor has rendered its decision shall be referred to herein as the “Final Closing Net Worth Statement” and the “Final Closing Net Worth Amount”, respectively.
(g) Effective upon the end of the Review Period (if a timely Dispute Notice is not delivered), or upon the resolution of all matters set forth in the Dispute Notice either by mutual agreement of the parties or by the issuance of the Adjustment Report (if a timely Dispute Notice is delivered), the Closing Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, subject to adjustment as follows:
(i) if the Final Working Capital as finally determined pursuant to this Section 2.9 Closing Net Worth Amount is greater less than the Target Working Capital Estimated Closing Net Worth Amount, the Closing Purchase Price shall be adjusted upwards in reduced by an amount equal to the difference between Estimated Closing Net Worth Amount minus the Final Working Capital and the Target Working Capital Closing Net Worth Amount; and
(ii) if the Target Working Capital Final Closing Net Worth Amount is greater than the Final Working Capital as finally determined pursuant to this Section 2.9Estimated Closing Net Worth Amount, the Closing Purchase Price shall be adjusted downwards in increased by an amount equal to the difference between Final Closing Net Worth Amount minus the Target Working Capital Amount and the Final Working CapitalEstimated Closing Net Worth Amount.
(eh) If The net amount of all applicable adjustments to the Adjusted Closing Purchase Price pursuant to Section 2.7(f) plus accrued interest on such amount at the three month London Interbank Offering Rate (LIBOR) as published in The Wall Street Journal, Eastern Edition, in effect on the day such payment is more than the Closing Date Amount, then the Buyer due shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from by the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 applicable party by wire transfer of United States dollars in immediately available funds to such an account or accounts as may be designated in writing by the Party entitled to such payment at least two recipient: (i) on the third Business Days prior to such payment dateDay following the end of the Review Period (if a timely Dispute Notice is not delivered) or (ii) on the third Business Day after resolution of all matters set forth in the Dispute Notice by mutual agreement of the parties or on the third Business Day after the date on which the Adjustment Report has been received by the Parties as applicable (if a timely Dispute Notice is delivered).
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Samples: Stock Purchase Agreement (Montpelier Re Holdings LTD)
Post-Closing Adjustment of Purchase Price. (a) During the 60 Within 90 days after the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the Seller prepare, or cause to be prepared, and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller Sellers’ Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a balance sheet of the Company, as of immediately prior to the Effective Time (the “Closing Balance Sheet”), (ii) a calculation of the actual Working Capital Schedule certified by an officer (the “Closing Working Capital”), determined as of immediately prior to the Buyer that it has been prepared Effective Time and without giving effect to the Transaction, and (iii) the Transaction Expenses as of immediately prior to the Effective Time (the “Closing Transaction Expenses”). Closing Working Capital shall be calculated in accordance with the requirements of Section 2.9Working Capital Principles.
(b) During the 20 Business Day period following the Seller’s receipt of the Working Capital Schedule, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule Final Closing Statement shall become final and binding on the 20th Business Day 30th day following delivery thereof, unless prior to the end of such period, the Seller Sellers’ Representative delivers to the Buyer a written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed itemdispute as to the Closing Working Capital as set forth in the Final Closing Statement. The Seller Sellers shall be deemed to have agreed with all items and amounts in the of Closing Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c2.6(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts of the Closing Working Capital as reflected on the Working Capital Schedule Final Closing Statement not being calculated in accordance with this Section 2.92.6.
(c) During the ten15-Business Day day period following delivery of a the Notice of Disagreement (if delivered by the Seller Sellers’ Representative pursuant to Section 2.6(b)) by the Sellers’ Representative to the Buyer, if any, the Parties parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the SellerFinal Closing Statement. Any disputed items resolved in writing between the Buyer Sellers’ Representative and the Seller Buyer within such ten Business Day 15-day period shall be final and binding with respect to such items, and if the Seller Sellers’ Representative and the Buyer agree in writing on the resolution of each disputed item specified by the Seller Sellers’ Representative in the Notice of Disagreement and the amount of the Final Working CapitalDisagreement, the amount so determined shall be final and binding on the Parties parties for all purposes hereunder. If the Seller Sellers’ Representative and the Buyer have not resolved all such differences by the end of such ten Business Day 15-day period, the Seller Sellers’ Representative and the Buyer shall submit, in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capitaldispute, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capitalitem, which determination shall be final and binding on the Parties parties for all purposes hereunder. The determination of Independent Accounting Firm shall consider only those items and amounts in the Sellers’ Representative and the Buyer’s respective positions that are identified as being items and amounts to which the Sellers’ Representative and the Buyer have been unable to agree. In resolving any disputed item, the Independent Accounting Firm shall be accompanied may not assign a value to any item greater than the greatest value for such item claimed by a certificate of either party or less than the Independent Accounting Firm that it reached smallest value for such determination in accordance with the provisions of this Section 2.9item claimed by either party. The Independent Accounting Firm shall be Deloitte & Touche Gxxxx Xxxxxxxx or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller Sellers’ Representative and the Buyer. The Seller Buyer and Sellers’ Representative agree to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter in customary form. The Sellers’ Representative and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it as promptly as practicable, and in any event within 20 Business Days 30 days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment Judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to accordance with the procedures set forth in Section 10.811.9. In acting under this Agreement, the Independent Accounting Firm will be entitled to the privileges and immunities of an arbitrator.
(d) The costs of any dispute resolution pursuant to this Section 2.9(c2.6(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties Sellers and the Buyer in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party party incurred in connection with their the preparation or review of the Working Capital Schedule Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyparty.
(de) The Buyer and the Sellers will (in the case of the Sellers, prior to the Closing and, in the case of the Buyer, during the period from and after the date of delivery of the Final Closing Statement through the resolution of any adjustment to the Estimated Purchase Price contemplated by this Section 2.6) afford the other party and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records relating to the Company, the Business, the Shares and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 2.6. Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of the Estimated Purchase Price as specified in this Section 2.6; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants. In no event shall either party be obligated to disclose or provide access to work papers or any other books and records if such disclosure or access would, in the reasonable opinion of such party’s legal advisors, result in, or be reasonably likely to result in, the waiver of any legal privilege or work product protection. For clarity, any information disclosed or made available pursuant to this subpart (e) shall be subject to Section 6.5.
(f) The Estimated Purchase Price shall be adjusted (the “Adjusted Purchase Price”)adjusted, upwards or downwards, as follows:
(i) if For the Final purposes of this Agreement, all of amounts set forth in this Section 2.6(f)(i) shall, without duplication, be aggregated and be referred to as the “Net Adjustment Amount” (which may be positive or negative):
(A) the amount (which may be positive or negative) equal to the Closing Working Capital as finally determined pursuant to this Section 2.9 2.6, minus the Estimated Working Capital; and
(B) the amount (which may be positive or negative) equal to the Closing Transaction Expenses as finally determined pursuant to this Section 2.6, minus the Estimated Transaction Expenses.
(ii) If the Net Adjustment Amount is greater than the Target Working Capital Amountpositive, the Estimated Purchase Price shall be adjusted upwards in an amount equal to the difference between Net Adjustment Amount and the Buyer shall pay the Net Adjustment Amount to the Sellers (in proportion to their respective percentages set forth on Schedule 2.3), to the bank accounts designated in writing by the Sellers (such designation to be made within two Business Days after the Final Closing Statement becomes or is deemed final and binding) within five Business Days following the date upon which the Final Closing Statement becomes final and binding and the Parties shall cause the Escrow Agent to release the Working Capital and Escrow Amount to the Target Working Capital Amount; andSellers, as directed by the Sellers’ Representative.
(iiiii) if If the Target Working Capital Net Adjustment Amount is greater than negative (in which case the Final Working Capital as finally determined pursuant Net Adjustment Amount for purposes of this clause (iii) shall be deemed to this Section 2.9be equal to the absolute value of such amount), the Estimated Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Working Capital Net Adjustment Amount and the Final Working Capital.
(e) If Buyer may deliver written notice to the Adjusted Purchase Price is more than Escrow Agent and the Closing Date Sellers’ Representative specifying such Net Adjustment Amount, then and the Buyer Escrow Agent shall pay to the Seller, Buyer the Net Adjustment Amount out of the Working Capital Escrow Amount and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the BuyerSellers, as directed by the Sellers’ Representative, the remaining balance of the Working Capital Escrow Amount, all in accordance with the terms of the Escrow Agreement. In the event that the Working Capital Escrow Amount is insufficient to cover the Net Adjustment Amount, each Seller shall be obligated pay such Seller’s respective portion (based on such Seller’s respective percentage set forth on Schedule 2.3) of the remaining Net Adjustment Amount to a bank account designated in writing by the Buyer (such designation to be made within five two Business Days after the Final Working Capital Closing Statement becomes finalor is deemed final and binding) within five Business Days following the date upon which the Final Closing Statement becomes final and binding. In the event that a Seller fails to pay all or part of the Net Adjustment Amount within the time period specified in the immediately preceding sentence, the Buyer may deliver written notice to the Escrow Agent and the Sellers’ Representative specifying such unpaid amount, and the Escrow Agent shall pay such amount out of the Escrow Fund to the Buyer in accordance with the terms of the Escrow Agreement; provided, that such Seller shall (a) promptly restore the Escrow Fund to the extent any funds are so paid and (b) remain liable in the event the Escrow Fund is insufficient to cover the amount of such difference by wire transfer deficiency for which such Seller is or may be liable. No failure on the part of the Buyer to deliver a notice as specified in the immediately available funds in U.S. dollars. Amounts preceding sentence shall relieve any Seller of such Seller’s obligation to be paid pursuant to this Section 2.9(e) shall bear interest from pay the Closing Date amount of such deficiency to the date of such payment at an annual rate equal Buyer.
(g) Except to the three-month LIBOR rate in effect extent otherwise required under applicable Law, the parties and their respective Affiliates shall treat any and all payments under Section 2.6(f) as of the third Business Day prior adjustments to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment datePurchase Price for Tax purposes.
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Post-Closing Adjustment of Purchase Price. (a) During the 60 As promptly as practicable, but in no event later than 75 days after the Closing Date, the Buyer Seller, at its cost, shall prepare deliver to the Working Capital Schedule. The Buyer shall consult with Purchaser a balance sheet (the Seller "Closing Date Balance Sheet") of the Company and the parties shall cooperate Subsidiaries, accompanied by an independent auditor's report prepared on a statutory basis of Deloitte & Touche LLP to the effect that such Closing Date Balance Sheet presents fairly in all material respects the statutory surplus of the Company and the Subsidiaries as of the Closing Date (the "Closing Date Statutory Surplus") and was prepared in accordance with one another in SAP consistent with the preparation of the Working Capital Schedule. Annual Statutory Statements and the Quarterly Statutory Statements.
(b) Within 60 30 days after the date on which the Purchaser has received the Closing DateDate Balance Sheet, the Buyer Purchaser, if the Purchaser disagrees with the Closing Date Balance Sheet, shall deliver to the Seller a notice setting forth in reasonable detail the Working Capital Schedule certified by an officer of items or amounts with which the Buyer that it has been prepared Purchaser disagrees and the Purchaser's proposed corrections thereto. If the Purchaser does not deliver such a notice within such 30-day period, the Purchaser shall be deemed to agree in accordance all respects with the requirements Closing Date Balance Sheet, except in the case of Section 2.9fraud.
(bc) During In the 20 Business Day period following event that the Seller disagrees with any proposed corrections set forth in the Purchaser's notice, within thirty (30) days after the receipt of such notice, the Seller shall deliver to the Purchaser a written statement in reasonable detail of the Seller’s receipt of the Working Capital Schedule, the Buyer shall cooperate with 's objections. If the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of does not deliver such a notice within such 30-day period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed agree in all respects with all the Purchaser's corrections to the Closing Date Balance Sheet. If the Purchaser and the Seller cannot resolve any disputed items and amounts in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
within ten (c10) During the ten-Business Day period following Days after Seller's delivery of a Notice such written statement of Disagreement by the Seller to the Buyer, if anyobjections, the Parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-Business Day period, Purchaser and the Seller shall cooperate with cause a certified public accounting firm of national reputation reasonably acceptable to both the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer Purchaser and the Seller within such ten Business Day period (which shall be final and binding not have any material relationship with respect to such items, and if the Purchaser or the Seller or any of their respective Affiliates) (the "Neutral Auditor") to promptly review this Agreement and the Buyer agree in writing on the resolution of each such disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunderitems. If the Seller and the Buyer have not resolved all such differences by Purchaser are unable to agree on the end of such ten Business Day periodNeutral Auditor, the Seller and the Buyer Purchaser shall submiteach have the right to request that the New York, New York office of the American Arbitration Association appoint the Neutral Auditor. The Neutral Auditor shall consider only those items in writing, to an independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views Closing Date Balance Sheet as to which the correct nature Purchaser has disagreed in its notice and amount of each item remaining in dispute and the amount of the Final Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Final Working Capital, which determination shall be final and binding on the Parties for all purposes hereunder. The determination of the Independent Accounting Firm shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm issues as shall may reasonably be agreed in writing affected by the Seller and the Buyersuch items. The Seller and the Buyer Purchaser shall use their commercially reasonable efforts to cause the Independent Accounting Firm Neutral Auditor to render its determinations as soon as practicable. The Company and the Purchaser shall, upon reasonable prior notice, provide the Purchaser, the Seller and the Neutral Auditor access to, Records and other documents and materials relating to the Company and the Subsidiaries that are relevant to a written decision resolving determination of the issues in dispute. The Neutral Auditor shall decide all matters submitted relating to it within 20 Business Days following the procedures to be followed for resolution of the items in dispute, including those relating to the submission thereofand receipt of information and documents; provided, however that at the request of either the Seller or the Purchaser, a meeting shall be held at which the parties may present their views, that both the Seller and the Purchaser shall have equal access to the Neutral Auditor, and that all information and documents which either party delivers or makes available to the Neutral Auditor shall be furnished to the other party as well, and that all information and documents which the Company delivers or makes available to the Neutral Auditor shall be furnished to both the Seller and the Purchaser. The Independent Accounting Firm Neutral Auditor shall be authorized deliver to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto Purchaser and the Seller’s position , as promptly as reasonably practicable, but no later than thirty (30) days after the Neutral Auditor is engaged, a written report setting forth its determinations with respect theretoto the disputed items. Upon such delivery, such report shall be final and binding upon the Purchaser and the Seller. The Seller Purchaser and the Buyer Seller agree that judgment may be entered upon to execute, if requested by the written determination of the Independent Accounting Firm in any court referred to in Section 10.8Neutral Auditor, a reasonable engagement letter. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, Neutral Auditor arising from such engagement shall be borne paid by the Parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis parties pro rata based on where the relative dollar values Neutral Auditor's determination of Closing Date Statutory Surplus falls in comparison to Sierra's and the amounts in dispute and shall be Purchaser's calculations; provided that, if the Closing Date Statutory Surplus as determined by the Independent Accounting Firm at Neutral Auditor is greater than the time amount determined by Sierra, the determination of Purchaser shall bear all such firm is rendered on the merits of the matters submitted. The fees and disbursements of expenses, and if the Representatives of each Party incurred in connection with their preparation or review of Closing Date Statutory Surplus as determined by the Working Capital Schedule Neutral Auditor is less than the amount determined by the Purchaser, Sierra shall bear all such fees and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyexpenses.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if In the Final Working Capital event that the Closing Date Statutory Surplus, as finally determined pursuant to this Section 2.9 in accordance with clause (c) above, is greater than the Target Working Capital AmountEstimated Statutory Surplus, the Purchase Price shall be adjusted upwards in an amount as follows:
(A) If the Estimated Statutory Surplus was greater than or equal to $88,730,000, then the difference between Contingent Purchase Price shall be increased dollar-for-dollar by the Final Working Capital amount that the Closing Date Statutory Surplus is greater than the Estimated Statutory Surplus;
(B) If the Estimated Statutory Surplus was less than $88,730,000 and the Target Working Capital Amount; andClosing Date Statutory Surplus is equal to or less than $88,730,000, then the Cash Purchase Price shall be increased dollar-for-dollar by the amount that the Closing Date Statutory Surplus is greater than the Estimated Statutory Surplus;
(C) If the Estimated Statutory Surplus was less than $88,730,000 and the Closing Date Statutory Surplus is greater than $88,730,000, then the Cash Purchase Price shall be increased by the amount that the Cash Purchase Price was reduced pursuant to Section 1.3(b)(iii) and the Contingent Purchase Price shall be increased dollar-for-dollar by the amount that the Closing Date Statutory Surplus exceeds $88,730,000.
(ii) if In the Target Working Capital Amount is greater than event that the Final Working Capital Closing Date Statutory Surplus, as finally determined pursuant to this Section 2.9in accordance with clause (c) above, is less than the Estimated Statutory Surplus, the Purchase Price shall be adjusted downwards as follows:
(A) If the Estimated Statutory Surplus was less than $88,730,000, the Cash Purchase Price shall be decreased dollar-for-dollar by the amount the Closing Date Statutory Surplus is less than the Estimated Statutory Surplus. The Cash Purchase Price shall not be reduced below $0 as a result of this Section 1.4(d)(ii)(A), but any adjustment that would otherwise bring the Cash Purchase Price below $0 shall result in an a reduction of the Contingent Purchase Price.
(B) If the Estimated Statutory Surplus and the Closing Date Statutory Surplus were both greater than or equal to $88,730,000, then the Contingent Purchase Price shall be reduced dollar-for-dollar by the amount that the Closing Date Statutory Surplus is less than the Estimated Statutory Surplus.
(C) If the Estimated Statutory Surplus was greater than or equal to $88,730,000 and the Closing Date Statutory Surplus is less than $88,730,000 then (x) the Contingent Purchase Price shall be reduced by the amount that the Estimated Statutory Surplus is greater than $88,730,000 and (y) the Cash Purchase Price shall be reduced by the amount that the Closing Date Statutory Surplus is less than $88,730,000.
(iii) In the event the Closing Date Statutory Surplus is equal to the difference between Estimated Statutory Surplus, the Target Working Capital Amount and the Final Working CapitalPurchase Price shall not be adjusted pursuant to this Section 1.4.
(e) If Within five (5) Business Days after the Adjusted Purchase Price is more than calculation of the Closing Date AmountStatutory Surplus becomes final pursuant to Section 1.4(c), the Purchaser or Seller, as applicable, shall deliver to the other, as applicable, by wire transfer of immediately available funds to an account designated in writing by such other party, the amount by which the Cash Purchase Price has been adjusted, upwards or downwards, as applicable, pursuant to Section 1.4(d).
(f) As promptly as practicable, but in no event later than seventy-five (75) days after the Closing Date, Seller shall, at its sole cost and expense, determine the Fair Market Value of the Fixed Income and Preferred Securities as of the Closing Date and deliver to the Purchaser a written determination thereof. If the Fair Market Value of the Fixed Income and Preferred Securities as shown on such statement exceeds the SAP value thereof as shown on the Closing Date Balance Sheet then the Purchaser will pay 65% of such excess to the Seller less any amount theretofore paid by the Purchaser to the Seller or plus any amount theretofore paid by the Seller to the Purchaser pursuant to Section 1.2. If the SAP value of the Fixed Income and Preferred Securities as shown on the Closing Date Balance Sheet exceeds the Fair Market Value thereof as shown on such statement, then the Buyer Seller will pay 65% of such excess to the Purchaser less any amount theretofore paid by the Seller to the Purchaser or plus any amount theretofore paid by the Purchaser to the Seller pursuant to Section 1.2. If the SAP value of the Fixed Income and Preferred Securities as shown on the Closing Date Balance Sheet is equal to the Fair Market Value thereof as shown on such statement, then the Purchaser shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, or the Seller shall pay to the BuyerPurchaser, within the amount paid by or to the other pursuant to Section 1.2, as applicable. Should the Purchaser disagree with the Seller's determination of the Fair Market Value of the Fixed Income and Preferred Securities, such disagreement shall be governed by the procedures set forth in Sections 1.4(b) and 1.4(c), mutatis mutandis. Within five (5) Business Days after the Final Working Capital becomes final, delivery of the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid determination prepared pursuant to this Section 2.9(e) 1.4(f), the Purchaser or Seller, as applicable, shall bear interest from the Closing Date deliver to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect other, as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 applicable, by wire transfer of United States dollars in immediately available funds to such an account or accounts as may be designated in writing by such other party, the Party entitled amount necessitated by any determination of the value of the Fixed Income and Preferred Securities, as applicable, pursuant to this Section 1.4(f).
(g) Following the Closing Date, the Purchaser shall cause the Company and the Subsidiaries to afford the Seller and Sierra and their accountants full access during normal business hours to the books, records, facilities and employees of the Company and the Subsidiaries and shall cooperate with the Seller and Sierra and their accountants to enable Sierra to prepare, and the accountants to audit, the Closing Date Balance Sheet and to resolve any dispute with respect thereto between the Purchaser and the Seller; provided, however, that any such payment at least two Business Days prior to such payment dateinvestigation shall be conducted in a manner which does not unreasonably interfere in any material respect with the normal operations, customer relations or employee relations of the Purchaser, the Company or any Subsidiary.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sierra Health Services Inc)
Post-Closing Adjustment of Purchase Price. (a) During the 60 days after the Closing Date, the Buyer shall prepare the Working Capital Schedule. The Buyer shall consult with the Seller and the parties shall cooperate with one another in the preparation of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to the Seller a written statement (the “Closing Statement”) that shall set forth a calculation of the actual Net Working Capital Schedule certified by an officer as of 12:01
a. m. on the Buyer that it has been Closing Date (the “Closing Net Working Capital”), prepared in accordance with the requirements of Section 2.9Balance Sheet Principles.
(b) During the 20 Business Day period following the Seller’s receipt of the Working Capital ScheduleClosing Statement, the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule Closing Statement reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule Closing Statement shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller shall be deemed to have agreed with all items and amounts in the Working Capital Schedule Closing Statement not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts reflected on the Working Capital Schedule not being calculated in accordance with this Section 2.9.
(c) During the ten-ten (10) Business Day period following delivery of a Notice of Disagreement by the Seller to the Buyer, if any, the Parties parties in good faith shall seek to resolve in writing any differences that they may have with respect to the matters specified therein. During such ten-ten (10) Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten (10) Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and Disagreement, the amount Closing Statement (including the calculation of the Final Closing Net Working Capital, the amount ) so determined shall be final and binding on the Parties parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end of such ten (10) Business Day period, the Seller and the Buyer shall submit, in writing, to an a mutually acceptable independent public accounting firm (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount calculation of the Final Closing Net Working Capital, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount calculation of the Final Closing Net Working Capital, which determination shall be final and binding on the Parties parties for all purposes hereunder. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the parties in accordance with the standards set forth in this Section 2.9 within the range of the difference between Buyer’s position with respect thereto and Seller’s position with respect thereto. The determination of the Independent Accounting Firm shall be based solely on the briefs submitted by the parties and not on independent review, and shall be accompanied by a certificate of the Independent Accounting Firm that it reached such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 twenty (20) Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment Judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.810.9. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties parties in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each Party party incurred in connection with their preparation or review of the Closing Statement (including the computation of the Closing Net Working Capital Schedule Capital) and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Partyparty.
(d) The Purchase Price shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, as follows:
(i) if the Final Closing Net Working Capital as finally determined pursuant to this Section 2.9 is greater than the Target Working Capital Amount, the Purchase Price shall be adjusted upwards in an amount not equal to the difference between the Final Preliminary Net Working Capital and as set forth on the Target Working Capital Amount; andPreliminary Closing Statement, as follows:
(iii) if for purposes of this Agreement, “Net Adjustment Amount” means an amount, which may be positive or negative, equal to the Target Working Capital Amount is greater than the Final Closing Net Working Capital as finally determined pursuant to this Section 2.9, 2.9 minus the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Preliminary Net Working Capital Amount and as set forth on the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Preliminary Closing Date Amount, then the Buyer shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference by wire transfer in immediately available funds in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the Closing Date to the date of such payment at an annual rate equal to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the Party entitled to such payment at least two Business Days prior to such payment date.Statement;
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. The Purchase Price shall be subject to adjustment after the Closing Date based on the value of the Product Inventory as of the Closing Date in the manner specified in this Section 2.7.
(a) During Set forth on Section 2.7(a) of the 60 days after Disclosure Schedule, and as of July 12, 2011, is a list of the Closing DateProduct Inventory by lot number, indicating the number of Product units of each strength, the Buyer shall prepare remaining shelf-life of the Working Capital Schedule. The Buyer shall consult lots listed and the value of the remaining units of each lot, calculated in a manner consistent with the Seller and the parties shall cooperate with one another in the preparation current prices listed on Exhibit C of the Working Capital Schedule. Within 60 days after the Closing Date, the Buyer shall deliver to the Seller the Working Capital Schedule certified by an officer of the Buyer that it has been prepared in accordance with the requirements of Section 2.9Manufacturing Agreement (“Preliminary Product Inventory Calculation”).
(b) During the 20 Business Day period As promptly as practicable, but in any event within fifteen (15) days following the Seller’s receipt Closing Date, Sellers shall prepare and deliver to Buyer a calculation of the Working Capital Schedulevalue of the Product Inventory as of the Closing Date (the “Closing Product Inventory Calculation”), the Buyer shall cooperate with the Seller and its Representatives to provide them with any information used in preparing the Working Capital Schedule reasonably requested by the Seller and its Representatives and reasonably available to the Buyer. The Working Capital Schedule shall become final and binding on the 20th Business Day following delivery thereof, unless prior to the end of such period, the Seller delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any disputed item. The Seller which calculation shall be deemed to have agreed with all items and amounts prepared in the Working Capital Schedule not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance a manner consistent with Section 2.9(c). Any Notice of Disagreement may reference only disagreements based on mathematical errors or based on amounts 2.7(a) above and the value as reflected on Section 2.7(a) of the Working Capital Schedule not being calculated in accordance with this Section 2.9Disclosure Schedule.
(c) During Purchaser may dispute any aspect of the ten-Business Day period following Closing Inventory Calculation, but only on the basis that the Closing Product Inventory Calculation was not prepared in accordance with GAAP, contains any mathematical or clerical error or does not accurately reflect the actual number of units of the Product Inventory as of the Closing Date; provided, however, that Buyer shall have notified Sellers in writing of each disputed item, specifying the estimated amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within twenty (20) days of the delivery of the Closing Product Inventory Calculation to Buyer. In the event of such a Notice of Disagreement by the Seller to the Buyerdispute, if any, the Parties Sellers and Buyer shall attempt in good faith to reconcile their differences and, if they are unable to reach a resolution within twenty (20) days after the receipt by Sellers of Buyer’s written notice of dispute, they shall seek submit the items remaining in dispute for resolution to resolve in writing any differences that they may have with respect Xxxxxx Xxxxx LLP, or, if such firm shall decline or is unable to act or is not, at the matters specified therein. During such ten-Business Day period, the Seller shall cooperate with the Buyer and its Representatives to provide them with any information used in preparing the Notice of Disagreement reasonably requested by the Buyer or its Representatives and reasonably available to the Seller. Any disputed items resolved in writing between the Buyer and the Seller within such ten Business Day period shall be final and binding with respect to such items, and if the Seller and the Buyer agree in writing on the resolution of each disputed item specified by the Seller in the Notice of Disagreement and the amount of the Final Working Capital, the amount so determined shall be final and binding on the Parties for all purposes hereunder. If the Seller and the Buyer have not resolved all such differences by the end time of such ten Business Day periodsubmission, the Seller independent of Sellers and the Buyer shall submit, in writingBuyer, to an another independent public accounting firm of international reputation mutually acceptable to Sellers and Buyer (either Xxxxxx Amper LLP or such other accounting firm being referred to herein as the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amount of the Final Working Capital, and the which Independent Accounting Firm shall make a written determination as shall, within thirty (30) days after such submission, determine and report to each Sellers and Buyer upon such remaining disputed item items, and the amount of the Final Working Capital, which determination such report shall be final final, binding and binding conclusive on the Parties for all purposes hereunderSellers and Buyer. The determination fees and disbursements of the Independent Accounting Firm shall be accompanied by a certificate allocated between Sellers and Buyer in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that it reached is unsuccessfully disputed by each such determination in accordance with the provisions of this Section 2.9. The Independent Accounting Firm shall be Deloitte & Touche or, if such firm is unable or unwilling to act, such other independent public accounting firm party (as shall be agreed in writing by the Seller and the Buyer. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 20 Business Days following the submission thereof. The Independent Accounting Firm shall be authorized to resolve only those items remaining in dispute between the Parties in accordance with the provisions of this Section 2.9 within the range of the difference between the Buyer’s position with respect thereto and the Seller’s position with respect thereto. The Seller and the Buyer agree that judgment may be entered upon the written determination of the Independent Accounting Firm in any court referred to in Section 10.8. The costs of any dispute resolution pursuant to this Section 2.9(c), including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be borne by the Parties in inverse proportion as they may prevail on the matters resolved finally determined by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on ) bears to the relative dollar values of the amounts in dispute and shall be determined by the Independent Accounting Firm at the time the determination total amount of such firm is rendered on the merits of the matters remaining disputed items so submitted. The fees and disbursements of the Representatives of each Party incurred in connection with their preparation or review of the Working Capital Schedule and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such Party.
(d) The Closing Product Inventory Calculation as submitted by Sellers to Buyer shall be deemed final, binding and conclusive on the parties for purposes of this Section 2.7 absent the submission of any written dispute by Buyer in accordance with subjection (c) set forth immediately above. In the event Buyer submits any dispute in accordance with said subsection (c), the Closing Product Inventory Calculation shall be deemed final for the purposes of this Section 2.7 upon the earlier of (i) the resolution of all disputes by Sellers and Buyer and (ii) the resolution of all disputes by the Independent Accounting Firm. Within fifteen (15) days of the Closing Product Inventory Calculation being deemed final, a Purchase Price adjustment shall be adjusted (the “Adjusted Purchase Price”), upwards or downwards, made as follows:
(i) if in the Final Working Capital as finally determined pursuant to this Section 2.9 is greater than event that the Target Working Capital Amountamount of the Product Inventory reflected in the Preliminary Product Inventory Calculation exceeds the amount of the Product Inventory reflected in the Closing Product Inventory Calculation, then the Purchase Price shall be adjusted upwards downward in an amount equal to the difference between the Final Working Capital such excess and the Target Working Capital Amount; and
(ii) if the Target Working Capital Amount is greater than the Final Working Capital as finally determined pursuant to this Section 2.9, the Purchase Price shall be adjusted downwards in an amount equal to the difference between the Target Working Capital Amount and the Final Working Capital.
(e) If the Adjusted Purchase Price is more than the Closing Date Amount, then the Buyer Sellers shall pay to the Seller, and if the Adjusted Purchase Price is less than the Closing Date Amount, the Seller shall pay to the Buyer, within five Business Days after the Final Working Capital becomes final, the amount of such difference excess to Buyer by wire transfer in immediately available funds to an account designated by Buyer, or
(ii) in U.S. dollars. Amounts to be paid pursuant to this Section 2.9(e) shall bear interest from the event that the amount of the Product Inventory reflected in the Closing Date Product Inventory Calculation exceeds the amount of the Product Inventory reflected in the Preliminary Product Inventory Calculation, then the Purchase Price shall be adjusted upward in an amount equal to such excess and Buyer shall pay the date amount of such payment at an annual rate equal excess to the three-month LIBOR rate in effect as of the third Business Day prior to the date the payment is made (the “Agreed Rate”). Payments in respect of this Section 2.9(e) shall be made within three Business Days of final determination of the Final Working Capital pursuant to the provisions of this Section 2.9 Sellers by wire transfer of United States dollars in immediately available funds to the Purchase Price Bank Account. Any amounts to be paid by either party to the other in accordance with the immediately preceding sentence shall be made only with reference to the net book value of any portion of the Product Inventory which is the subject of such account adjustment and as determined in accordance with GAAP as defined herein, and not based on any other valuation of or accounts as may be designated in writing by the Party entitled valuation methodology applicable to such payment at least two Business Days prior to such payment dateProduct Inventory.
Appears in 1 contract
Samples: Product Transfer Agreement (Hi Tech Pharmacal Co Inc)
