Post-Closing Adjustment. (a) Within ninety (90) days following the Closing Date, the Buyers shall cause to be prepared and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation of (i) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing. (b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers (i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error. (c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4: (i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price. (d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4: (i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and (ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost. (e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4: (i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and (ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs. (f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement. (g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
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Post-Closing Adjustment. (a) Within ninety (90) days following after the Closing Date, the Buyers Purchaser shall cause prepare and deliver to be prepared and delivered to Mallinckrodt UK Seller a written statement setting out, in reasonable detail, a calculation forth Purchaser’s proposed calculations of (i) the Closing Net Working Capital, (ii) Closing Date Debt and Proration Adjustment, in each case, immediately prior to the open of business on the Closing Working Capital Adjustment, Date (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts . The calculation of Working Capital set forth thereinon the Closing Statement shall be prepared in accordance with the Accounting Principles and, to the extent consistent with the Accounting Principles, the methodologies, practices and principles used to prepare the illustrative calculation of Working Capital set forth on Exhibit F (without regard to any purchase accounting adjustments arising out of the transactions contemplated hereby). During Seller shall cooperate as reasonably requested in connection with the forty-five (45) days after preparation of the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requestedincluding, upon the Buyers shallreasonable prior request of Purchaser, and shall cause their officers, directors, employees and accountants making available to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, Purchaser such relevant books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement Seller and shall use its reasonable best efforts to take copies of the same, provided however that make available (x) any such access or furnishing of information shall be conducted during normal business hours and without interrupting in such manner as not any material respects the operation of Seller’s business) the appropriate personnel of Seller with knowledge or information relevant to interfere with those items. During the normal operations thirty (30) days immediately following Seller’s receipt of the Closing Statement, Seller shall be permitted to review the working papers relating to the Closing Statement and Purchaser will, upon the reasonable prior request of Seller, make available to Seller such other relevant books and records of the Fiber Business and shall use its commercially reasonable efforts to make available (yduring normal business hours and without interrupting in any material respects the operation of Purchaser’s business) Mallinckrodt UK shall bear all the appropriate personnel of Purchaser with knowledge or information relevant to those items. The Closing Statement will become final and binding upon the Parties on the thirtieth (30th) day following receipt thereof by Seller unless Seller gives written notice of its own costs in connection with its review disagreement (a “Notice of the amounts set forth in the Final Closing StatementDisagreement”) to Purchaser prior to such date. The Buyers will charge no Notice of Disagreement shall specify in reasonable detail the nature and dollar amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingof any disagreement so asserted.
(b) If Mallinckrodt UK disputes a timely Notice of Disagreement is received by Purchaser, then the applicable Closing Statement (as revised in accordance with clause (i) or (ii) below) will become final and binding upon the Parties on the earlier of (i) the date Purchaser and Seller resolve in writing all of the differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date any matters properly in dispute are finally resolved in writing by the Independent Auditor. During the thirty (30) days immediately following the delivery of a Notice of Disagreement, Purchaser and Seller will consult in good faith to resolve in writing any differences that they may have with respect to any matter specified in the Notice of Disagreement. If Purchaser and Seller resolve some or all of such differences within such thirty (30) day period, they will document their resolution in a writing signed by each of them, and such writing will be final and binding on the Parties.
(c) At the end of such thirty (30) day consultation period, if Purchaser and the Seller have not agreed upon the Closing Statement, either Purchaser or Seller may submit any and all matters that remain in dispute and that were properly included in the Notice of Disagreement to the Independent Auditor. The Independent Auditor will work to resolve such disputed matters promptly and, in any event, within thirty (30) days from the date the dispute is submitted to the Independent Auditor. The Parties will cooperate with the Independent Auditor during the term of its engagement. The Independent Auditor’s determination will be based solely on presentations by Purchaser and Seller which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). Any item not specifically referred to the Independent Auditor for evaluation shall be deemed final and binding on the Parties. The Independent Auditor will finalize the Closing Statement by selecting with respect to each item in dispute an amount between or item equal to Purchaser’s position as set forth in the Final Closing Statement or Seller’s position as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve Disagreement. Neither the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with Parties nor any of their respective Affiliates or Representatives will meet or discuss any substantive matters with the Parties appointed Independent Auditor without Purchaser and Seller and their respective Representatives being present or having the opportunity following at least three (3) Business Days’ notice to be present, either in person or by mutual agreement telephone. All information provide by a Party to the Independent Auditor must be concurrently delivered to all of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement Parties. All disputes with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit Statement submitted to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issueIndependent Auditor shall be resolved exclusively by it. The Expert shall apply amount of the applicable terms of this Agreement and in particular the defined terms Working Capital set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment 2.7 shall be adjusted upwards or downwards as follows the “Final Working Capital.” The amount of Closing Date Debt set forth on the final Closing Statement determined pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs 2.7 shall be adjusted upwards or downwards as follows “Final Closing Date Debt.” The Proration Items set forth on the final Closing Statement determined pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers 2.7 shall pay to Mallinckrodt UK the amount in cash equal be netted against one another pursuant to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts methodology set forth in Section 2.6 to determine the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates net amount of such costs, and Proration Items (such net amount is the finally documented costs relating thereto later differ from the amounts set forth in the “Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional theretoProration Adjustment”), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
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Post-Closing Adjustment. (a) Within ninety (90) days following On or prior to the Closing Date, Sellers shall deliver to Buyer a statement setting forth Sellers' estimate of the Buyers aggregate value of the Scheduled Liabilities (the "Estimated Scheduled Liabilities Valuation"), including an itemized list showing Sellers' estimate of each of the Scheduled Liabilities. The Estimated Scheduled Liabilities Valuation shall cause to be prepared and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation of (i) the Closing Net Working Capitalin accordance with GAAP, and (ii) on a basis consistent with the preparation of the Financial Statements of the Business. The Estimated Scheduled Liabilities Valuation shall be used to calculate the Closing Working Capital Adjustment, Payment absent manifest error.
(iiib) No later than sixty (60) days after the Closing IndebtednessDate, (iv) Buyer shall prepare and deliver to Sellers a statement setting forth the aggregate value of the Scheduled Liabilities as of the Closing CashDate (the "Closing Date Liabilities Valuation"), including an itemized list showing Buyer's determination of the value of each of the Scheduled Liabilities. The Closing Date Liabilities Valuation shall be prepared (i) in accordance with GAAP, and (vii) on a basis consistent with the preparation of the Financial Statements of the Business.
(c) After receipt of the Closing Net CashDate Liabilities Valuation, which when considered togetherSellers shall have thirty (30) days (the "Sellers' Review Period") to review it. If, results within Sellers' Review Period, Sellers notify Buyer in writing that they object to any item(s) on the Closing Date Liabilities Valuation and specify the item(s) and amount(s) in dispute and the basis for such dispute (the "Sellers' Amendment Notice"), the parties shall use their best efforts to reach agreement in respect of the disputed items within the fifteen (15) day-period (the "Resolution Period") following the delivery of Sellers' Amendment Notice. Any item(s) on the Closing Date Liabilities Valuation not identified in writing as a disputed item within Sellers' Review Period shall be deemed to have been accepted by Sellers and not subject to any further review or change. If no Sellers' Amendment Notice is received by Buyer during Sellers' Review Period, the Closing Date Liabilities Valuation shall be deemed accepted by Sellers.
(d) If at the conclusion of the Resolution Period the parties have not reached an agreement on Sellers' objections, then all amounts and issues remaining in dispute shall be submitted by Sellers and Buyer to a Neutral Accountant. The fees, costs and expenses of the Neutral Accountant shall be borne proportionately by Buyer and Sellers to the extent that each party's calculation of the Final Purchase Price aggregate value of the Scheduled Liabilities differs from Buyers’ viewpoint, the final Scheduled Liabilities Valuation as well finally determined by the Neutral Accountant. All costs and expenses incurred by the parties in connection with resolving any dispute under this Section 1.7 before the Neutral Accountant shall be borne by the party incurring such cost and expense. The Neutral Accountant shall act as an arbitrator to determine only those issues still in dispute at the Buyers’ view end of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinSellers' Review Period. During the The Neutral Accountant's determination shall be made within forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statementits engagement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts be set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver a written statement delivered to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement Sellers and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, Buyer and shall be final, binding, conclusive and nonappealable for all purposes hereofhereunder. If no Notice of Dispute is delivered by Mallinckrodt UK to The term "Final Scheduled Liabilities Valuation" shall mean the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any aggregate value of the Parties appointed Scheduled Liabilities as agreed to by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, Sellers and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination Buyer in accordance with such procedures as Section 1.7(c) or the Parties may agree. In no event shall the Expert assign a aggregate value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that Scheduled Liabilities resulting from the fees and expenses of the Expert shall be allocated reasonably determination made by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined Neutral Accountant in accordance with this Section 2.4 exceeds 1.7(d) (in addition to those items theretofore agreed to by Sellers and Buyer during the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards Resolution Period or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined otherwise in accordance with Section 2.4(b1.7(c)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Sellers a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support the amounts set forth thereinsuch Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing The Revised Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and prepared in such manner as not to interfere accordance with the normal operations of the Business Accounting Principles and (y) Mallinckrodt UK shall bear this Agreement, with all of its own costs amounts reflected therein being converted to Canadian dollars in connection accordance with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSection 1.2(d).
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses, including using reasonable best efforts to cause Purchaser’s accountants to cooperate and assist Sellers, their Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Sellers shall deliver to Purchaser in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Sellers disagree, (C) the bases for each such disagreement and items set forth in (D) Sellers’ calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchaser, it being understood that all items Purchaser and amounts Sellers shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchaser and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Sellers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve PricewaterhouseCoopers, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any PricewaterhouseCoopers is unable to serve, Purchaser and Sellers shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Sellers or Purchaser and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Sellers and the Buyers Purchaser are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Sellers shall cause their respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Sellers and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchaser, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Sellers shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchaser, on the one hand, and Sellers, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchaser and Sellers agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Transaction 17 Expenses (if any) (or after Purchaser and Sellers receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchaser shall pay to Mallinckrodt UK the Sellers an amount of cash in cash Canadian dollars equal to the such excess of the Final Purchase Price over and (B) if the Estimated Purchase Price; andAdjustment Amount shall exceed the final Adjustment Amount, then Sellers shall pay to Purchaser an amount of cash in Canadian dollars equal to such excess;
(ii) (A) if the Final Purchase Price is lower than final Closing Cash shall exceed the Estimated Purchase Price Mallinckrodt UK Closing Cash, then Purchaser shall pay to Sellers an amount of cash in Canadian dollars equal to such excess and (B) if the Buyers Estimated Closing Cash shall exceed the final Closing Cash, then Sellers shall pay to Purchaser an amount of cash in Canadian dollars equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchaser shall pay to Sellers an amount of cash in Canadian dollars equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Sellers shall pay to Purchaser an amount of cash equal in Canadian dollars to such excess;
(iv) (A) if the Estimated Transaction Expenses shall exceed the final Transaction Expenses, then Purchaser shall pay to Sellers an amount of cash in Canadian dollars equal to such excess and (B) if the final Transaction Expenses shall exceed the Estimated Transaction Expenses, then Sellers shall pay to Purchaser an amount of cash in Canadian dollars equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available fundsCanadian dollars (with amounts denominated in currencies other than Canadian dollars being converted to Canadian dollars in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchaser to Sellers or by Sellers to Purchaser, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post- Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Shareholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net Worth") or (ii) ------------------------ a different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted -------------------- EBIT" ), CCC shall promptly deliver a written notice with supporting ---- documentation (the "Financial Adjustment Notice") to the shareholders of the --------------------------- Group Companies, including the Shareholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger Consideration Adjustment." Any increase in the Base ------------------------------- Merger Consideration resulting from such access or furnishing of information Merger Consideration Adjustment shall be conducted during owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The shareholders of the amounts and items set forth in Group Companies, including the Final Closing StatementShareholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Shareholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Shareholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Shareholders. If, however, the amount in cash equal Shareholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Sellers a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Trayport Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Trayport Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support such Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses. The Revised Statement shall be prepared in accordance with the Accounting Principles and this Agreement, with all amounts reflected therein being converted to dollars in accordance with Section 1.2(d). It is agreed that no amounts set forth therein. During on the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Revised Statement, when and as reasonably requestedincluding the Revised Adjustment Amount (or any component thereof), or the Buyers shall, and Estimated Adjustment Amount (or any component thereof) shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary be adjusted in any way for a review by Mallinckrodt UK of the amounts set forth changes in the Final Closing Statement and to take copies value of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingPurchaser Common Stock.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses, including using reasonable best efforts to cause Purchaser’s accountants to cooperate and assist Sellers, their Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Sellers shall deliver to Purchaser in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Sellers disagree, (C) the bases for each such disagreement and items set forth in (D) Sellers’ calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchaser, it being understood that all items Purchaser and amounts Sellers shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchaser and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Sellers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve KPMG LLP, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any KPMG LLP is unable to serve, Purchaser and Sellers shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Sellers or Purchaser and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Sellers and the Buyers Purchaser are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Sellers shall cause its respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Sellers and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchaser, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Sellers shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchaser, on the one hand, and Sellers, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchaser and Sellers agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) (or after Purchaser and Sellers receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchaser shall pay to Mallinckrodt UK Sellers an amount of cash in dollars equal to such excess and (B) if the Estimated Adjustment Amount shall exceed the final Adjustment Amount, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(A) if the final Closing Cash shall exceed the Estimated Closing Cash, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the Estimated Closing Cash shall exceed the final Closing Cash, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Sellers shall pay to Purchaser an amount of cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; andsuch excess;
(iiiv) (A) if the Final Purchase Price is lower than Estimated Trayport Transaction Expenses shall exceed the Estimated Purchase Price Mallinckrodt UK final Trayport Transaction Expenses, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the Buyers final Trayport Transaction Expenses shall exceed the Estimated Trayport Transaction Expenses, then Sellers shall pay to Purchaser an amount of cash in cash dollars equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by federal funds wire transfer of immediately available fundsdollars (with amounts denominated in currencies other than dollars being converted to dollars in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchaser to Sellers or by Sellers to Purchaser, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
Samples: Stock Purchase Agreement
Post-Closing Adjustment. The Closing Date Payment shall be adjusted in accordance with the following procedure:
(aA) Within ninety (90) Not later than 20 days following after the Closing Date, the Buyers shall cause Buyer will prepare and deliver to be prepared and delivered to Mallinckrodt UK a written statement setting outthe Seller updated schedules as follows, in reasonable detail, a calculation each case as of (i) the close of business on the Closing Net Working CapitalDate (collectively, (ii) the “Updated Schedules”):
Schedule 1.1 Contract Trial Balance Schedule 1.2 FF&E Schedule 1.3 Other Receivables Schedule 1.4 Past Due Leases Schedule 1.5 Pending Leases Schedule 1.7 Pre-Funded Leases Schedule 1.8 Prepaid Expenses Schedule 1.9 Reserve Listing Schedule 1.12 UNL Leases Schedule 1.13 Vehicle Leases Schedule 1.14 VenCore Receivables Schedule 5 Recourse Pool The Updated Schedules will be accompanied by a revised Settlement Statement, computing the Purchase Price as of close of business on the Closing Working Capital Adjustment, Date (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Revised Settlement Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(bB) After receipt of the Updated Schedules and Revised Settlement Statement, the Seller will have 15 days to review the Updated Schedules and Revised Settlement Statement. During such 15 day period, Buyer will, and will cause its representatives to, make available to Seller and its representatives on a timely basis all books, records and appropriate personnel to provide Seller and its representatives with such information regarding the Updated Schedules and Revised Settlement Statement as Seller and its representatives may reasonably request. Unless Seller delivers written notice to Buyer setting forth the specific items disputed by Seller on or prior to the 15th day after its receipt of the Updated Schedules and Revised Settlement Statement, Seller will be deemed to have accepted and agreed to the Updated Schedules and Revised Settlement Statement and such agreement will be final and binding. If Seller so notifies Buyer of its objections to the Updated Schedules and Revised Settlement Statement, Buyer and Seller will, within 30 days following such notice (the “Resolution Period”), attempt to resolve their differences.
(C) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, Buyer and Seller do not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail resolve all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and disputed items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items Updated Schedules and amounts in the Final Closing Revised Settlement Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes end of this Section 2.4. Upon the Buyers’ receipt of any Notice of DisputeResolution Period, Mallinckrodt UK then Buyer and the Buyers Seller shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international mutually select a public accounting firm that is an expert in all relevant accounting matters independent of each of Seller and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties Buyer (the “ExpertAccounting Arbitrator”), to finally resolve, ) as soon expeditiously as practicable, and all items remaining in any event dispute will be submitted to the Accounting Arbitrator by the parties, in writing, within sixty (60) 30 days after the selection of the Accounting Arbitrator. The failure by either Seller or Buyer to submit a statement regarding any items remaining in dispute within such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of 30 day period shall be deemed a waiver by such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement party of its position with respect right to each disputed issuedo so. The Expert Accounting Arbitrator shall apply the applicable terms of this Agreement and act as an arbitrator to determine only those items in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agreedispute. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the All fees and expenses relating to the work, if any, to be performed by the Accounting Arbitrator will be allocated between Buyer and Seller in the same proportion that the aggregate amount of the Expert shall be allocated reasonably disputed items so submitted to the Accounting Arbitrator that is unsuccessfully disputed by each such party (as finally determined by the ExpertAccounting Arbitrator) bears to the total amount of such disputed items so submitted. All determinations by The Accounting Arbitrator will deliver to Buyer and Seller a written determination (such determination to include a work sheet setting forth all material calculations used in arriving at such determination) of the Expert shall disputed items within 30 days of receipt of the disputed items, which determination will be final, binding and conclusive. The final, binding and conclusive Updated Schedules and binding with respect to Revised Settlement Statement, which either are agreed upon by Seller and Buyer or are delivered by the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined Accounting Arbitrator in accordance with this Section 2.4 2(c)(3), will be the “Conclusive Statement.”
(D) If the Purchase Price as of close of business on the Closing Date as indicated on the Conclusive Statement exceeds the Estimated IT Carve-Out Closing Date Payment, then within three Business Days after the Buyers parties obtain the Conclusive Statement, the Buyer shall pay such excess to Mallinckrodt UK the Seller by (i) executing and delivering to the Seller an additional Term Note with a principal amount equal to ninety-five percent (95%) of the amount in cash equal to by which the excess Net Book Value of the IT Carve-Out Pre-Closing Costs over Acquired Receivables on the Estimated IT Carve-Out Payment; and
Conclusive Statement exceeds such Net Book Value on the Settlement Statement, and (ii) if paying the IT Carve-Out Pre-Closing Costs as finally determined remainder of such excess to the Seller in accordance with this Section 2.4 are lower than cash. At the Estimated IT Carve-Out Paymentsame time, Mallinckrodt UK the Buyer shall also pay to the Buyers Seller the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Costinterest required by Section 2(e).
(eE) The Estimated R&D Lab Construction Pre-If the Closing Costs Date Payment exceeds the Purchase Price as of close of business on the Closing Date as indicated on the Conclusive Statement, then within three Business Days after the parties obtain the Conclusive Statement, the Seller shall be adjusted upwards or downwards as follows pursuant pay such excess to this Section 2.4:
the Buyer by (i) if accepting from the R&D Lab Construction PreBuyer an additional Term Note with a principal amount equal to ninety-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK five percent (95%) of the amount in cash equal to by which the excess Net Book Value of the R&D Lab Construction Pre-Closing Costs over Acquired Receivables on the Estimated R&D Lab Construction Pre-Closing Costs; and
Settlement Statement exceeds such Net Book Value on the Conclusive Statement, and (ii) if paying the R&D Lab Construction Pre-Closing Costs as finally determined remainder of such excess to the Buyer in accordance with this Section 2.4 are lower than cash. At the Estimated R&D Lab Construction Pre-Closing Costssame time, Mallinckrodt UK the Seller shall also pay to the Buyers Buyer the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costsinterest required by Section 2(e).
(fF) Notwithstanding anything in Section 2.4(d), Section 2.4(e) Any excess amount paid by the Buyer or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined Seller in accordance with Section 2.4(b)2(c)(3)(D) with respect or 2(C)(3)(E) shall be treated as an adjustment to the R&D Lab Construction Pre-Closing Costs and/or Purchase Price for all Tax purposes by the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, Seller and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing StatementBuyer.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Asset Purchase Agreement
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Parent a written revised Closing Date Statement and a revised statement setting out, in reasonable detail, a calculation of (i) the Adjustment Amount as of the Closing Net Working CapitalDate (the "Revised Adjustment Amount"), (ii) together with such reasonably detailed data appropriate to support such revised Closing Date Statement and Revised Adjustment Amount. The Revised Adjustment Amount shall be prepared in accordance with GAAP, consistent with the Accounting Principles. In connection with the preparation of such revised Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, Date Statement and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpointRevised Adjustment Amount, as well as the Buyers’ view of Sellers shall:
(viA) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK provide Purchaser and its Affiliates (including the Acquired Subsidiaries) and their authorized representatives with reasonable access to the officesaccess, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours hours, upon reasonable notice and in such manner as not without unreasonably interfering with Sellers' operations of their businesses, to interfere with the normal operations relevant books, records and facilities of the Business and (y) Mallinckrodt UK shall bear all the relevant employees, consultants and representatives of Parent or its own costs Affiliates who were involved in connection with its review the preparation of the amounts set forth Closing Date Statement and Revised Adjustment Amount; and (B) cooperate in good faith with Purchaser and its Affiliates (including the Final Acquired Subsidiaries) and their authorized representatives, in each case, as reasonably requested by Sellers to evaluate, assess and prepare the Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingDate Statement and Revised Adjustment Amount.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Revised Adjustment Amount, Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, facilities, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the preparation of the revised Closing StatementDate Statement and the calculation of the Revised Adjustment Amount.
(c) Within thirty (30) days following receipt of the Revised Adjustment Amount, Mallinckrodt UK Parent shall deliver to Purchaser in writing either its (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount or (ii) dispute thereof, specifying in reasonable detail all points the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for its dispute. To be effective, any such notice of dispute shall include a copy of the amounts and Revised Adjustment Amount, marked to indicate those specific line items set forth that are in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs dispute (the “Notice "Disputed Line Items") and shall be accompanied by Parent's calculation of Dispute”)the Revised Adjustment Amount. In the event that Parent does not provide a notice of dispute within such thirty (30) day period, it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice Parent, on behalf of Dispute Sellers, shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to accepted in full the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein Revised Adjustment Amount as prepared by Purchaser, which shall be final and binding for the Buyers purposes hereunder. During the thirty (30) days after the delivery of such dispute notice to Purchaser, Purchaser and Parent shall attempt in good faith to resolve any such dispute and finally determine the final Adjustment Amount. If, at the end of such thirty (30)-day period, Purchaser and Parent have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve the disputeKPMG LLP, which shall act as arbitrator. If any KPMG LLP is unable to serve, Purchaser and Parent shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Parent or Purchaser and is otherwise neutral and impartial; provided, however, that if Parent and Purchaser are unable to select such dispute cannot be resolved by Mallinckrodt UK and the Buyers other accounting firm within thirty (30) days after the Buyers receive the Notice delivery of Disputewritten notice of a disagreement, Mallinckrodt UK each of Purchaser and the Buyers Parent shall jointly refer the dispute to an international cause its respective selected nationally recognized accounting firm to select another firm meeting the requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience. The accounting firm or accountant so selected shall be referred to herein as the "Accountant." The Accountant shall determine the final Adjustment Amount in accordance with the terms and conditions of this Agreement. In making such determination, the Accountant may only consider Disputed Line Items and must resolve the matter in accordance with the terms and provisions of this Agreement; provided that is an expert in all relevant accounting matters and standards and that has no material relationship with any the determination of the Parties appointed by mutual agreement of Accountant will neither be more favorable to Purchaser than reflected in the Parties (Closing Date Statement or the “Expert”), Revised Adjustment Amount nor more favorable to finally resolveParent than reflected in Parent's dispute notice. The Accountant shall deliver to Parent and Purchaser, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Dateappointment, a written statement report setting out a calculation forth the resolution of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.final
Appears in 1 contract
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post-Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Shareholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net Worth") or (ii) a different amount than the Group ------------------------ 1997 Adjusted EBIT (the "Actual 1997 Adjusted EBIT" ), CCC shall promptly ---- ------------------------- deliver a written notice with supporting documentation (the "Financial --------- Adjustment Notice") to the shareholders of the Group Companies, including the ----------------- Shareholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger Consideration -------------------- Adjustment." Any increase in the Base Merger Consideration resulting from such access or furnishing of information ---------- Merger Consideration Adjustment shall be conducted during owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The shareholders of the amounts and items set forth in Group Companies, including the Final Closing StatementShareholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Shareholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Shareholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Shareholders. If, however, the amount in cash equal Shareholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Sellers a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support the amounts set forth thereinsuch Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing The Revised Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and prepared in such manner as not to interfere accordance with the normal operations of the Business Accounting Principles and (y) Mallinckrodt UK shall bear this Agreement, with all of its own costs amounts reflected therein being converted to dollars in connection accordance with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSection 1.2(d).
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses, including using reasonable best efforts to cause Purchaser’s accountants to cooperate and assist Sellers, their Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Sellers shall deliver to Purchaser in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Sellers disagree, (C) the bases for each such disagreement and items set forth in (D) Sellers’ calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchaser, it being understood that all items Purchaser and amounts Sellers shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchaser and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Sellers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve PricewaterhouseCoopers, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any PricewaterhouseCoopers is unable to serve, Purchaser and Sellers shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Sellers or Purchaser and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Sellers and the Buyers Purchaser are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Sellers shall cause their respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Sellers and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchaser, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Sellers shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchaser, on the one hand, and Sellers, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchaser and Sellers agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any) (or after Purchaser and Sellers receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchaser shall pay to Mallinckrodt UK the Sellers an amount of cash in cash dollars equal to the such excess of the Final Purchase Price over and (B) if the Estimated Purchase Price; andAdjustment Amount shall exceed the final Adjustment Amount, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(ii) (A) if the Final Purchase Price is lower than final Closing Cash shall exceed the Estimated Purchase Price Mallinckrodt UK Closing Cash, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the Buyers Estimated Closing Cash shall exceed the final Closing Cash, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Sellers shall pay to Purchaser an amount of cash equal in dollars to such excess;
(iv) (A) if the Estimated Transaction Expenses shall exceed the final Transaction Expenses, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the final Transaction Expenses shall exceed the Estimated Transaction Expenses, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available fundsdollars (with amounts denominated in currencies other than dollars being converted to dollars in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchaser to Sellers or by Sellers to Purchaser, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Post-Closing Adjustment. (a) Within ninety (90) days following after the Closing Date, the Buyers Sellers shall prepare, or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK a written statement setting out, in reasonable detail, Buyer a calculation as of (i) the Closing Net Working CapitalDate, (ii) which statement shall be prepared in accordance with GAAP, consistently applied by Sellers, except as otherwise required by this Agreement, and shall set forth the Current Assets and Current Liabilities of Sellers as of the Closing Working Capital Adjustment, (iii) Date and the Average Eight Month EBUs as of the Closing Indebtedness, Date (iv) the "Preliminary Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Adjustment Statement”"), together with a copy of any working papers relating to such Preliminary Closing Adjustment Statement and such other supporting evidence as Buyer may reasonably request either prior to or after the delivery thereof. Buyer shall cooperate in providing to Sellers all related supporting schedulesrelevant books, calculations records and documentation reasonably appropriate personnel of the CATV Business in order to support facilitate the amounts set forth therein. During preparation of the Preliminary Closing Adjustment Statement and shall have the right to examine all records used to prepare the Preliminary Closing Adjustment Statement.
(b) In the event that Sellers fail to deliver to Buyer the Preliminary Closing Adjustment Statement within such 90-day period, then Buyer shall be entitled to deliver to Sellers the Preliminary Closing Adjustment Statement, in which case the provisions of this Section 2.05 relating to the parties' roles in the preparation and review process shall be deemed reversed.
(c) In the event Buyer determines that the Preliminary Closing Adjustment Statement does not accurately reflect the final calculation of the Purchase Price or the adjustments and prorations to be made to the Base Price in accordance with this Agreement, Buyer shall, within forty-five (45) days after receipt of the date Mallinckrodt UK receives the Final Preliminary Closing Adjustment Statement, when and as reasonably requestedso inform Sellers in writing (the "Buyer's Objection"), setting forth the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK basis of the amounts set forth in Buyer's Objection. In the Final Closing Statement and to take copies event of the sameBuyer's Objection, provided however that (x) any such access or furnishing of information Buyer and Sellers shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort attempt to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and differences underlying the Buyers Buyer's Objection within thirty (30) days after of Sellers' receipt thereof. If Sellers and Buyer are unable to resolve all their differences within such thirty (30) day period, they shall refer their remaining differences to Ernst & Young, certified public accountants, or such other nationally recognized firm of independent public accountants as to which Buyer and Sellers may mutually agree (the Buyers receive "CPA Firm"), who shall, acting as experts and not as arbitrators, determine on the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any basis of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, standard set forth in Section 2.04(a) hereof and in any event within sixty (60) days after such reference, all unresolved points of disagreement only with respect to the Final remaining differences so submitted, whether and to what extent, if any, the Preliminary Closing StatementAdjustment Statement requires adjustment. For purposes of The CPA Firm will base its determination only on evidence brought to it by the parties and shall not conduct an audit, but may conduct such testing procedures as it determines are appropriate to make such determination by on the Expert, each of Mallinckrodt UK evidence brought to it. The CPA Firm shall deliver its written determination to Buyer and Sellers no later than 60 days after the Buyers shall submit remaining differences underlying the Buyer's Objection are referred to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issueCPA Firm. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s CPA Firm's determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to upon the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) parties. The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.fees
Appears in 1 contract
Samples: Asset Purchase Agreement (Frontiervision Capital Corp)
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post- Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Stockholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Stockholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Stockholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net Worth") or (ii) ------------------ a different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted -------------------- EBIT" ), CCC shall promptly deliver a written notice with ---- supporting documentation (the "Financial Adjustment Notice") to the stockholders --------------------------- of the Group Companies, including the Stockholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger Consideration Adjustment." Any increase in the Base Merger ------------------------------- Consideration resulting from such access or furnishing of information Merger Consideration Adjustment shall be conducted during owed by CCC to the Stockholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Stockholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The stockholders of the amounts and items set forth in Group Companies, including the Final Closing StatementStockholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Stockholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Stockholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Stockholders. If, however, the amount in cash equal Stockholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post- Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Stockholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Stockholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Stockholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net ------------------ Worth") or (ii) a different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted EBIT" ), CCC shall promptly deliver a written notice with ------------------------- supporting documentation (the "Financial Adjustment Notice") to the stockholders --------------------------- of the Group Companies, including the Stockholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger Consideration Adjustment." Any increase in the Base ------------------------------- Merger Consideration resulting from such access or furnishing of information Merger Consideration Adjustment shall be conducted during owed by CCC to the Stockholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Stockholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The stockholders of the amounts and items set forth in Group Companies, including the Final Closing StatementStockholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Stockholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Stockholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Stockholders. If, however, the amount in cash equal Stockholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (ai) Within ninety (90) 60 days following the Closing Date, Parent shall prepare and deliver to the Buyers Stockholder Representative an unaudited consolidated balance sheet of the Company and its Subsidiaries as of immediately prior to the Effective Time (such balance sheet is referred to as the “Closing Date Balance Sheet”). The Closing Date Balance Sheet shall be substantially in the form of the Company’s Balance Sheet and shall, except as otherwise provided in this Agreement, be prepared in accordance with GAAP (except for the absence of footnotes) and on a basis consistent with and utilizing the same principles, practices and policies as those used by the Company in preparing the Company’s Balance Sheet. Together with the Closing Date Balance Sheet, the Parent’s Chief Financial Officer shall deliver to the Stockholder Representative a certificate setting forth:
(A) Parent’s good faith determination of the Closing Net Assets;
(B) Parent’s good faith determination of Closing Debt;
(C) Company’s good faith determination of the Specified Transaction Expenses and all other Transaction Expenses;
(D) Parent’s good faith determination of the Closing Adjustment Amount; and
(E) Parent’s good faith determination of the Adjusted Enterprise Value all in reasonable detail together with appropriate backup documentation to support such estimations and determinations (collectively, the “Parent Determination”).
(ii) After the delivery of the Company Balance Sheet and the Parent Determination, Parent shall, and shall cause the Surviving Corporation to, cooperate with the Stockholder Representative in connection with his review of the Company Balance Sheet and the Parent Determination, including by providing the Stockholder Representative and his representatives reasonable access during business hours to be prepared the employees of Parent and delivered to Mallinckrodt UK a written statement the Surviving Corporation responsible for, and the books, records and other materials used in, the preparation of the Company Balance Sheet and the Parent Determination. The Stockholder Representative may dispute any amounts reflected on the Closing Date Balance Sheet or the Parent Determination by notifying Parent in writing of each disputed item, specifying the amount thereof in dispute and setting outforth, in reasonable detail, a calculation of (i) the Closing Net Working Capitalbasis for such dispute, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) within 30 days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK Stockholder Representative’s receipt of the amounts set forth in Closing Date Balance Sheet and the Final Closing Statement and to take copies of Parent Determination. If the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers Stockholder Representative delivers a written notice, specifying in reasonable detail all points notice of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty30-five (45) day period, it shall be conclusively presumed that the Final Closing Statement Stockholder Representative and thus Parent shall, during the Final Purchase Price30 days following such delivery, each use good faith efforts to reach agreement on the R&D Lab Construction Predisputed items or amounts in order to finally determine the Adjusted Enterprise Value. If the Stockholder Representative and Parent are unable to reach agreement concerning the Adjusted Enterprise Value during such 30-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Disputeday period, Mallinckrodt UK and the Buyers they shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer thereafter submit the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with the Accounting Referee for resolution pursuant to Section 3.1(d). In the event of any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination dispute by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows Stockholder Representative pursuant to this Section 2.4:
(i) if 3.1(c)(ii), the Final Purchase Price exceeds Adjustment Escrow Shares Release Date shall automatically be extended until the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess resolution of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows such dispute pursuant to this Section 2.4:3.1(c) or Section 3.1(d).
(iiii) if The Adjusted Enterprise Value shall be deemed conclusively determined for purposes of this Agreement upon the IT Carve-Out Pre-earlier to occur of (x) the failure of the Stockholder Representative to notify Parent of a dispute within 30 days of the Stockholder Representative’s receipt of the Closing Costs Date Balance Sheet and Parent Determination and the other information provided in clause (c)(i) above, all as finally determined set forth in accordance with this clause (c)(i) above, (y) the written resolution of all disputes pursuant to clause (c)(ii) above by Parent and the Stockholder Representative, and (z) the resolution of all disputes by the Accounting Referee pursuant to Section 2.4 exceeds 3.1(d). Within three Business Days of such conclusive determination, if: (A) the Adjusted Enterprise Value is less than the Estimated IT Carve-Out PaymentEnterprise Value, Parent shall be entitled to receive from the Escrowed Shares that number of Escrowed Shares having a value, based on the Agreed Price Per Share, the Buyers absolute value of the difference between the Estimated Enterprise Value and the Adjusted Enterprise Value, or (B) the Adjusted Enterprise Value is greater than the Estimated Enterprise Value, Parent shall pay make a cash payment to Mallinckrodt UK the amount in cash Stockholder Representative (for further distribution to the Participating Rights Holders) equal to the excess absolute value of the IT Carve-Out Pre-Closing Costs over difference between the Estimated IT Carve-Out Payment; and
(ii) if Enterprise Value and the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing CostAdjusted Enterprise Value.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(fiv) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement herein to the contrary, if any Escrowed Shares that the amounts set forth in Parent shall be entitled to receive pursuant to Section 3.1(c)(iii) shall be out of the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to Adjustment Escrow Shares and the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based Escrowed Adjustment Shares, on estimates a pro rata basis, shall be rounded down to the nearest whole share (in the case of such costsfractional shares) and shall in no event exceed 5% of the Base Consideration Shares. Any payment of Escrowed Shares to the Parent pursuant to Section 3.1(c)(iii) shall be deemed a decrease to the Merger Consideration. The first 6.383% of any cash payment pursuant to Section 3.1(c)(iii) shall be allocated to the Executive Payee, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination remainder of any documented costs that differ from such payment shall be allocated among the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation various series of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations Company’s Preferred Stock in proportion to their respective Preference Percentage and documentation reasonably appropriate then to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party each holder of shares of Company Preferred Stock pursuant to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statementsuch holders’ respective Pro Rata Portion of each such series of Company Preferred Stock.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Merger Agreement (Acme Packet Inc)
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchasers shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Seller a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Trayport Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Trayport Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support the amounts set forth thereinsuch Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing The Revised Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and prepared in such manner as not to interfere accordance with the normal operations of the Business Accounting Principles and (y) Mallinckrodt UK shall bear this Agreement, with all of its own costs amounts reflected therein being converted to British pounds sterling in connection accordance with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSection 1.2(d).
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchasers shall provide Seller and its Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchasers reasonably requested by Seller to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses, including using reasonable best efforts to cause Purchasers’ accountants to cooperate and assist Seller, its Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Seller shall deliver to Purchasers in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Seller disagrees, (C) the bases for each such disagreement and items set forth in (D) Seller’s calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchasers, it being understood that all items Purchasers and amounts Seller shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchasers and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Seller have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve PricewaterhouseCoopers, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any PricewaterhouseCoopers is unable to serve, Purchasers and Seller shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Seller or Purchasers and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Seller and the Buyers Purchasers are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Seller shall cause its respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Seller and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchasers, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Seller shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchasers, on the one hand, and Seller, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchasers and Seller agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) (or after Purchasers and Seller receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchasers shall pay to Mallinckrodt UK Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Estimated Adjustment Amount shall exceed the final Adjustment Amount, then Seller shall pay to Purchasers an amount of cash in British pounds sterling equal to such excess;
(A) if the final Closing Cash shall exceed the Estimated Closing Cash, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Estimated Closing Cash shall exceed the final Closing Cash, then Seller shall pay to Purchasers an amount of cash in British pounds sterling equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Seller shall pay to Purchasers an amount of cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; andsuch excess;
(iiiv) (A) if the Final Purchase Price is lower than Estimated Trayport Transaction Expenses shall exceed the Estimated Purchase Price Mallinckrodt UK final Trayport Transaction Expenses, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Buyers final Trayport Transaction Expenses shall exceed the Estimated Trayport Transaction Expenses, then 18 Seller shall pay to Purchasers an amount of cash in cash British pounds sterling equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available fundsBritish pounds sterling (with amounts denominated in currencies other than British pounds sterling being converted to British pounds sterling in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchasers to Seller or by Seller to Purchasers, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Post-Closing Adjustment. The Estimated Purchase Price shall be adjusted following the Closing as provided in this Section 2.7:
(a) Within ninety (90) days following the Closing DateAs promptly as practicable, the Buyers shall cause to be prepared and delivered to Mallinckrodt UK a written statement setting out, but in reasonable detail, a calculation of (i) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the any event within forty-five (45) calendar days after the date Mallinckrodt UK receives Closing Date, Purchaser shall prepare and deliver to the Final Seller: (i) in accordance with the Adjustment Principles, a consolidated balance sheet of the Company and its Subsidiaries as of the Closing Date (the “Closing Date Balance Sheet”); and (ii) a statement that sets forth: (A) Purchaser’s good faith calculation of the amount of each of:
(1) Net Working Capital as of the Reference Time;
(2) Net Working Capital Excess as of the Reference Time or Net Working Capital Shortfall as of the Reference Time, as applicable; (3) Cash as of the Reference Time; (4) the Closing Date Indebtedness as of the Closing; and (5) Company Transaction Expenses; (B) the PP Adjustment Escrow Amount; and (C) the resulting calculation of the Purchase Price (collectively, the items in the foregoing clause (i) and clause (ii), the “Post-Closing Statement”), in each case including reasonable supporting documentation used by Purchaser in the preparation of the Post-Closing Statement, when and as reasonably requested, including the Buyers shallClosing Date Balance Sheet, and each component of the Purchase Price. The Post-Closing Statement, and the components thereof, shall cause their officersbe in the form attached hereto as Exhibit F and shall be prepared in good faith in accordance with the terms of this Agreement, directorsincluding the Adjustment Principles and the Illustrative Calculation of Net Working Capital, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement Company and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSubsidiaries.
(b) If Mallinckrodt UK disputes any amount or item set forth in Following receipt of the Final Closing Statement as calculated by Date Balance Sheet and the BuyersPost-Closing Statement, not more than the Seller shall have forty-five (45) calendar days after (the date Mallinckrodt UK receives “Review Period”) to review such Closing Date Balance Sheet and the Final Post-Closing Statement (including the determination of the Purchase Price). In connection with the review of the Closing Date Balance Sheet and the Post-Closing Statement, Mallinckrodt UK Purchaser shall deliver give, and shall cause the Company and its Affiliates and Representatives to give, to the Buyers a written noticeSeller and its Representatives reasonable and prompt access to the books, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement records and setting forth revised calculations for any other materials of the amounts Company and items set forth the personnel of, and work papers prepared by or for, Purchaser or the Company or their respective accountants and Representatives, including to such historical financial information of the Company (to the extent in Purchaser’s or its Representatives’ or Affiliates’ possession), in each case that reasonably relate to the Final Closing Date Balance Sheet and the Post-Closing Statement, includingas the Seller or its Representatives may reasonably request, without limitation, in order to permit the timely and complete review of the Closing Date Balance Sheet and the Post-Closing Statement by the Seller in accordance with this Section 2.7(b); provided that such access shall be in a manner that does not interfere with the normal business operations of Purchaser or the Company. If the Seller has accepted such Closing Date Balance Sheet and Post-Closing Statement in writing or has not given written notice to Purchaser setting forth any revision objection of the Seller to such Closing Date Balance Sheet and/or Post-Closing Statement (a “Statement of Objections”) prior to the Final expiration of the Table of Contents Review Period, then the Post-Closing Statement (including the determination of the Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute ) shall be deemed final and binding upon the parties. In the event that the Seller delivers a Statement of Objections during the Review Period, each of Purchaser and the Seller shall use its reasonable efforts to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers resolve such objections within such forty-five (45) calendar days following the receipt by Purchaser of such Statement of Objections (any unresolved objection following such forty-five (45)-calendar day period, it a “Dispute”). After such forty-five (45)-calendar day period, any item or matter that is not a Dispute shall become final and binding, unless the resolution of any item or matter objected to in the Statement of Objections affects any such aspect, or presupposes the inaccuracy of any such aspect, in which case such aspect shall, notwithstanding the failure to dispute such aspect in the Statement of Objections, be conclusively presumed that considered disputed in the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs of Objections. If Purchaser and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort Seller are unable to resolve the dispute. If all objections during such forty-five (45)-calendar day period, then any remaining Disputes, and only such dispute cannot remaining Disputes, shall be resolved by Mallinckrodt UK Deloitte LLP (“Deloitte”) or, if Deloitte is not available for such engagement or at the time of such proposed engagement is no longer independent, such other nationally recognized independent certified public accounting firm reasonably agreed to by Purchaser and the Buyers within thirty Seller (30) days after Deloitte or, if such Person is unable or unwilling to serve in such capacity (or the Buyers receive parties otherwise mutually determine), such other accounting firm agreed to by Purchaser or the Notice of DisputeSeller, Mallinckrodt UK the “Settlement Accountant”). If Purchaser and the Buyers shall jointly refer the dispute to Seller cannot agree on an international accounting firm within forty (40) calendar days of determining that is an expert a Settlement Accountant other than Deloitte must be appointed as contemplated by the preceding sentence, then the Seller and/or Purchaser may submit a request to the American Arbitration Association requesting appointment of a nationally recognized independent certified public accounting firm to serve as the Settlement Accountant. The Settlement Accountant shall be instructed to resolve any such remaining Disputes in all relevant accounting matters accordance with the terms of this Agreement, including the Adjustment Principles and standards the Illustrative Calculation of Net Working Capital, and that has no material relationship with any the books and records of the Parties appointed by mutual agreement of the Parties (the “Expert”)Company, to finally resolve, as soon as practicable, and in any event within sixty (60) calendar days after its appointment. The resolution of such reference, all unresolved points Disputes by the Settlement Accountant shall: (i) be set forth in writing; (ii) be within the range of disagreement with respect values established for such amount as determined by reference to the Final value assigned to such amount by the Seller in the Statement of Objections and by Purchaser in the Closing Date Balance Sheet or the Post-Closing Statement (to the extent such item was included therein, and in the event such item was not included therein, such amount assigned to such item shall be deemed to be zero); (iii) constitute an arbitral award; and (iv) be conclusive and binding upon all of the parties upon which a judgment may be rendered by a court of competent jurisdiction. The Post-Closing Statement, as modified in accordance with such resolution, shall become final and binding upon all parties. For purposes During the review by the Settlement Accountant, Purchaser and the Seller and their respective accountants shall each make available to the Settlement Accountant interviews with such individuals, and such information, books and records and work papers as may be reasonably required by the Settlement Accountant to fulfill its obligations pursuant to this Section 2.7(b); provided, however, that the accountants of each of Purchaser, the Seller and the Company shall not be obligated to make any work papers available to the Settlement Accountant except in accordance with such accountants’ normal disclosure procedures and then only after the Settlement Accountant has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants. Each of Purchaser and the Seller agrees that it shall not have any right to, and shall not, institute any Action of any kind challenging such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputeSettlement Accountant, except that the fees and expenses of foregoing shall not preclude an Action to enforce such determination or to challenge the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.Settlement Accountant’s
Appears in 1 contract
Post-Closing Adjustment. The Preliminary U.S. Purchase Price shall be subject to adjustment after the Closing Date as follows:
(a) Within ninety (90) days following the Closing Date, the Buyers shall cause to be prepared and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation of (i) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Adjustment Statement”) calculating the Designated Intercompany Accounts Amount as of the date Mallinckrodt UK receives immediately prior to the Final Closing Statement, when and as reasonably requestedDate (the “Closing Designated Intercompany Accounts Amount”), the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK Indebtedness of the amounts set forth in the Final Closing Statement and to take copies Company as of the same, provided however that Closing Date (xthe “Closing Indebtedness”) any such access or furnishing and the unpaid Company Transaction Expenses as of information shall be conducted during normal business hours the Closing Date (the “Closing Unpaid Company Transaction Expenses” and in such manner as not to interfere collectively with the normal operations of Closing Designated Intercompany Accounts Amount and the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of Closing Indebtedness, the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing“Adjustment Components”).
(b) If Mallinckrodt UK Seller in good faith disputes any amount or item set forth in Adjustment Component as shown on the Final Closing Adjustment Statement as calculated prepared by the BuyersBuyer, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK Seller shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers Buyer within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement of the Parties Closing Adjustment Statement a statement (the “ExpertDispute Notice”), ) setting forth Seller’s calculation of such Adjustment Component and describing in reasonable detail the basis for the determination of such different Adjustment Component. The Parties shall use commercially reasonable efforts to finally resolve, as soon as practicable, and in any event within sixty resolve such differences regarding the determination of such Adjustment Component for a period of thirty (6030) days after Buyer’s receipt of the Dispute Notice. If Seller and Buyer resolve such referencedifferences, all unresolved points the Adjustment Component agreed to by the Parties shall be deemed to be the “Final Closing Designated Intercompany Accounts Amount,” “Final Closing Indebtedness” or “Final Closing Unpaid Company Transaction Expenses,” as applicable, and the Closing Adjustment Statement agreed to by the Parties shall be deemed to be the “Final Closing Adjustment Statement.”
(c) If Seller and Buyer do not reach a final resolution on any Adjustment Component within thirty (30) days after Buyer’s receipt of disagreement with respect the Dispute Notice, unless Seller and Buyer mutually agree to continue their efforts to resolve such differences, KPMG International or another “Big 4” accounting firm mutually agreed upon by Buyer and Seller (the “Neutral Accountant”) shall resolve such differences, pursuant to an engagement agreement executed by Seller and Buyer and the Neutral Accountant, in the manner provided below. The Parties shall each be entitled to make a presentation to the Neutral Accountant, pursuant to procedures to be agreed to among Seller, Buyer and the Neutral Accountant (or, if they cannot agree on such procedures, pursuant to procedures determined by the Neutral Accountant), regarding such Party’s calculation of such Adjustment Component; and the Neutral Accountant shall be required to resolve the differences between Seller and Buyer and determine such Adjustment Component within twenty (20) Business Days after the completion of such presentations to the Neutral Accountant. The Closing Designated Intercompany Accounts Amount, Closing Indebtedness or Closing Unpaid Company Transaction Expenses, as applicable, determined by the Neutral Accountant shall be deemed to be the Final Closing Designated Intercompany Accounts Amount, Final Closing Indebtedness or Final Closing Unpaid Transaction Expenses, as applicable, and the Closing Adjustment Statement, as adjusted by the Neutral Accountant to reflect such determination, shall be deemed to be the Final Closing Adjustment Statement. For purposes of such Such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination Neutral Accountant shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to upon the Final Closing Statement and any item or amount set forth thereinParties, in the absence of absent fraud or manifest error.
(cd) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price The Neutral Accountant shall not be adjusted upwards authorized or downwards as follows pursuant to this Section 2.4permitted to:
(i) if determine any questions or matters whatsoever under or in connection with this Agreement except for the Final Purchase Price exceeds resolution of differences between Seller and Buyer regarding the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess determination of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined any Adjustment Component in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and1.7;
(ii) if resolve any such differences by making an adjustment to the IT Carve-Out Pre-Closing Costs Adjustment Statement that is outside of the range defined by amounts as finally determined proposed by Seller and Buyer; or
(iii) apply any accounting methods, treatments, principles or procedures other than as described in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost1.7.
(e) The Estimated R&D Lab Construction Pre-Seller and Buyer shall each pay one half of the fees and expenses of the Neutral Accountant; provided, that if the Neutral Accountant determines that one Party has adopted a position or positions with respect to the Closing Costs shall be adjusted upwards Adjustment Statement that is frivolous or downwards as follows pursuant to this Section 2.4:
clearly without merit, the Neutral Accountant (i) if the R&D Lab Construction Pre-Closing Costs as finally determined may, in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costsits discretion, the Buyers shall pay assign a greater portion of any such fees and expenses to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
such Party and (ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay provide to the Buyers Parties a written explanation of its reasons for making such a determination and such determination shall be conclusive and binding on the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing CostsParties, absent fraud or manifest error.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to The Parties agree that the contrary, if the amounts procedure set forth in the Final Closing Statement (as finally determined in accordance with this Section 2.4(b)) 1.7 for resolving disputes with respect to any Adjustment Component shall be the R&D Lab Construction Pre-Closing Costs and/or sole and exclusive method for resolving any such disputes; provided, that this provision shall not prohibit any Party from instituting litigation to enforce the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation ruling of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing StatementNeutral Accountant.
(g) Failure of Seller to deliver a Dispute Notice within thirty (30) days after receiving the Closing Adjustment Statement shall constitute acceptance of each Adjustment Component set forth on the Closing Adjustment Statement, whereupon such Adjustment Component shall be deemed to be the Final Closing Designated Intercompany Accounts Amount, Final Closing Indebtedness or Final Closing Unpaid Company Transaction Expenses, as applicable, and the Closing Adjustment Statement shall be deemed to be the Final Closing Adjustment Statement. Delivery by Seller of a Dispute Notice shall constitute final and binding acceptance by Seller of all portions of the Closing Adjustment Statement other than those specifically identified in the Dispute Notice as being subject to a good faith dispute.
(h) If the Final U.S. Purchase Price is less than the Preliminary U.S. Purchase Price by more than $25,000, then Seller shall pay to Buyer an amount equal to the difference between the Preliminary U.S. Purchase Price and the Final U.S. Purchase Price. If the Final U.S. Purchase Price is more than the Preliminary U.S. Purchase Price by more than $25,000, then Buyer shall pay to Seller an amount equal to the difference between the Final U.S. Purchase Price and the Preliminary U.S. Purchase Price. Any payment required pursuant to this Section 1.7(h) shall be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be in cash, by wire transfer of immediately available funds, not into one or more than ten (10) days after final determination thereof, to an account to be accounts designated by Buyer or Seller, as the payee at least case may be, within five (5) days prior Business Days after the date on which the Final U.S. Purchase Price is determined pursuant to the due datethis Section 1.7.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Microstrategy Inc)
Post-Closing Adjustment. (a) Within ninety Not less than ten (9010) days following Business Days prior to the Closing Date, Seller shall deliver to Buyer its good faith estimate of the Buyers shall cause prorations and adjustments to be prepared and delivered made with respect to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation of (i) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpointcalculated in accordance with Section 2.5 hereof, as well as including all estimated accrued liabilities and the Buyers’ view of deposits and prepaid expenses allocated in accordance with Section 2.5(a) (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Preliminary Adjustment Statement”). Seller shall, together upon delivery of such Preliminary Adjustment Statement, permit Buyer and its representatives reasonable access to the accounting records and accountant work papers (if any) used in connection with all related supporting schedulesthe preparation of the Preliminary Adjustment Statement. The Preliminary Adjustment Statement shall be prepared in accordance with generally accepted accounting principles, calculations consistently applied.
(b) Within thirty (30) days after the Closing Date, Seller shall prepare and documentation reasonably appropriate deliver to support Buyer an itemized list of the amounts set forth thereinfinal prorations and adjustments calculated in accordance with Section 2.5 (the “Closing Adjustment Statement”). During The Closing Adjustment Statement shall include a description of the forty-five net amount payable by Buyer or Seller as an adjustment pursuant to Section 2.5 hereof (45the “Closing Adjustment Amount”). The Closing Adjustment Statement shall be prepared in accordance with generally accepted accounting principles, consistently applied. Seller shall, upon delivery of such Closing Adjustment Statement, permit Buyer and its representatives reasonable access to the accounting records and accountant work papers (if any) used in connection with the preparation of the Closing Adjustment Statement.
(c) Within thirty (30) days after the date Mallinckrodt UK receives the Final Closing StatementAdjustment Statement is delivered to Buyer, when and as reasonably requested, the Buyers shall, and Buyer shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and complete its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK examination of the amounts set forth in the Final Closing Adjustment Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to Seller either (i) the Buyers written acknowledgement of its acceptance of the Closing Adjustment Statement and the Closing Adjustment Amount, or (ii) a written notice, specifying in reasonable detail all points of disagreement with report setting forth any proposed adjustments to the Buyers’ Final Closing Adjustment Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs Adjustment Amount (the “Notice of DisputeAdjustment Report”). In the event Buyer, it being understood that all items and amounts in within such thirty (30) day period, fails to deliver an Adjustment Report, the Final Closing Adjustment Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to be correct and the Closing Adjustment Amount to have been finally determined for purposes of Section 2.6(e) hereof.
(d) In the event Seller and Buyer fail to agree on any or all of the proposed adjustments to the Closing Adjustment Amount contained in the Adjustment Report within thirty (30) days after Buyer receives the Adjustment Report, then any party hereto may retain a nationally-recognized independent certified public accounting firm as may be mutually agreed upon, upon by the parties of the need for its services as an independent auditor and not for Seller or Buyer (the “Independent Auditor”). The Independent Auditor shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK instructed to make the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other final determination with respect to the specified points correctness of disagreement set forth the Adjustment Report in accordance with the Notice terms and provisions of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers this Agreement within thirty (30) days after the Buyers receive submission thereof. The decision by the Notice of Dispute, Mallinckrodt UK and Independent Auditor as to the Buyers shall jointly refer adjustments that should be made to the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties Closing Adjustment Statement (the “ExpertFinal Adjustment”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on Seller and Buyer. Buyer and Seller shall share equally the Parties for all purposes hereunder costs and shall not be subject to appeal or further review. Each expenses of the Parties Independent Auditor but each party hereto shall bear its own expenses in connection with any such dispute, except that the fees legal and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contraryother expenses, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statementany.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Equity Media Holdings CORP)
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post-Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Shareholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net Worth") or (ii) a different amount than the Group ------------------------ 1997 Adjusted EBIT (the "Actual 1997 Adjusted EBIT" ), CCC shall promptly ------------------------- deliver a written notice with supporting documentation (the "Financial --------- Adjustment Notice") to the shareholders of the Group Companies, including the ----------------- Shareholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger Consideration -------------------- Adjustment." Any increase in the Base Merger Consideration resulting from such access or furnishing of information ---------- Merger Consideration Adjustment shall be conducted during owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The shareholders of the amounts and items set forth in Group Companies, including the Final Closing StatementShareholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Shareholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Shareholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Shareholders. If, however, the amount in cash equal Shareholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Parent a written revised Closing Date Statement and a revised statement setting out, in reasonable detail, a calculation of (i) the Adjustment Amount as of the Closing Net Working Capital, Date (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Adjustment Amount”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support such revised Closing Date Statement and Revised Adjustment Amount. The Revised Adjustment Amount shall be prepared in accordance with GAAP, consistent with the amounts set forth thereinAccounting Principles. During In connection with the forty-five preparation of such revised Closing Date Statement and the calculation of the Revised Adjustment Amount, Sellers shall: (45A) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK provide Purchaser and its Affiliates (including the Acquired Subsidiaries) and their authorized representatives with reasonable access to the officesaccess, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours hours, upon reasonable notice and in such manner as not without unreasonably interfering with Sellers’ operations of their businesses, to interfere with the normal operations relevant books, records and facilities of the Business and (y) Mallinckrodt UK shall bear all the relevant employees, consultants and representatives of Parent or its own costs Affiliates who were involved in connection with its review the preparation of the amounts set forth Closing Date Statement and Revised Adjustment Amount; and (B) cooperate in good faith with Purchaser and its Affiliates (including the Final Acquired Subsidiaries) and their authorized representatives, in each case, as reasonably requested by Sellers to evaluate, assess and prepare the Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingDate Statement and Revised Adjustment Amount.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Revised Adjustment Amount, Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, facilities, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the preparation of the revised Closing StatementDate Statement and the calculation of the Revised Adjustment Amount.
(c) Within thirty (30) days following receipt of the Revised Adjustment Amount, Mallinckrodt UK Parent shall deliver to Purchaser in writing either its (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount or (ii) dispute thereof, specifying in reasonable detail all points the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for its dispute. To be effective, any such notice of dispute shall include a copy of the amounts and Revised Adjustment Amount, marked to indicate those specific line items set forth that are in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs dispute (the “Notice Disputed Line Items”) and shall be accompanied by Parent’s calculation of Dispute”)the Revised Adjustment Amount. In the event that Parent does not provide a notice of dispute within such thirty (30) day period, it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice Parent, on behalf of Dispute Sellers, shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to accepted in full the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein Revised Adjustment Amount as prepared by Purchaser, which shall be final and binding for the Buyers purposes hereunder. During the thirty (30) days after the delivery of such dispute notice to Purchaser, Purchaser and Parent shall attempt in good faith to resolve any such dispute and finally determine the final Adjustment Amount. If, at the end of such thirty (30)-day period, Purchaser and Parent have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve the disputeKPMG LLP, which shall act as arbitrator. If any KPMG LLP is unable to serve, Purchaser and Parent shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Parent or Purchaser and is otherwise neutral and impartial; provided, however, that if Parent and Purchaser are unable to select such dispute cannot be resolved by Mallinckrodt UK and the Buyers other accounting firm within thirty (30) days after the Buyers receive the Notice delivery of Disputewritten notice of a disagreement, Mallinckrodt UK each of Purchaser and the Buyers Parent shall jointly refer the dispute to an international cause its respective selected nationally recognized accounting firm to select another firm meeting the requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience. The accounting firm or accountant so selected shall be referred to herein as the “Accountant.” The Accountant shall determine the final Adjustment Amount in accordance with the terms and conditions of this Agreement. In making such determination, the Accountant may only consider Disputed Line Items and must resolve the matter in accordance with the terms and provisions of this Agreement; provided that is an expert in all relevant accounting matters and standards and that has no material relationship with any the determination of the Parties appointed by mutual agreement of Accountant will neither be more favorable to Purchaser than reflected in the Parties (Closing Date Statement or the “Expert”), Revised Adjustment Amount nor more favorable to finally resolveParent than reflected in Parent’s dispute notice. The Accountant shall deliver to Parent and Purchaser, as soon promptly as practicable, practicable and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.thirty
Appears in 1 contract
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post-Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Shareholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working CapitalWorth (the "Actual Closing Net Worth") or (ii) a ------------------------ different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted -------------------- EBIT" ), CCC shall promptly deliver a written notice with supporting ---- documentation (the "Financial Adjustment Notice") to the shareholders of the --------------------------- Group Companies, including the Shareholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT, (B) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing pursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), respectively, and (C) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Worth and the Actual Adjusted EBIT been used to determine the need for any adjustments to the Base Merger Consideration as set forth in (B) above. The differences between the respective amounts set forth in (B) and (C) and the amounts of the cash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), as adjusted pursuant to Sections 2.2(c) or 2.2(d), is referred to hereafter as the "Merger ------ Consideration Adjustment." Any increase in the Base Merger Consideration ------------------------ resulting from such Merger Consideration Adjustment shall be owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal quarterly dividends, as the same may be adjusted from time to time and in the ordinary course), then the number of shares of CCC Common Stock issuable as part of the Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of CCC Common Stock, if any, to be issued in respect of the Merger Consideration Adjustment shall be registered under the 1933 Act and approved for quotation on the Nasdaq National Market.
(c) The shareholders of the Group Companies, including the Shareholders, through the Group Representative, shall have thirty (30) days from the receipt of the Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of any such dispute within such 30-day period, (i) CCC shall be entitled to receive promptly pro rata from the Shareholders (which may, at CCC's sole discretion, be from the Pledged Assets as defined in, and subject to the provisions of, Section 3.2 and/or the Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) the Closing Working Capital AdjustmentShareholders shall be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Shareholders. If, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requestedhowever, the Buyers shall, and shall cause their officers, directors, employees and accountants Shareholders (through the Group Representative) have delivered notice of such a dispute to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers CCC within such forty30-five (45) day period, it then CCC's Accountant shall select a New Accounting Firm to review the books of the Group Companies including, the Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to determine the amount, if any, of the revised Merger Consideration Adjustment (the "Actual Merger Consideration Adjustment"). Such -------------------------------------- New Accounting Firm shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared confirmed by the Buyers have been agreed upon for all purposes Shareholders through the Group Representative and CCC within five (5) days of this Section 2.4its selection, unless there is an actual conflict of interest. Upon The New Accounting Firm shall make its determination of the Buyers’ receipt of any Notice of DisputeActual Merger Consideration Adjustment, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers if any, within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statementits selection. For purposes of such The determination made by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and New Accounting Firm shall be final and binding on the Parties for all purposes hereunder parties hereto, and, upon such determination, CCC shall be entitled to receive pro rata from the Shareholders (which may, at CCC's sole discretion, be from the Pledged Assets as defined in, and shall not be subject to appeal the provisions of, Section 3.2 and/or the Contingent Merger Consideration) the Actual Merger Consideration Adjustment or further reviewthe Shareholders shall be entitled to receive from CCC the Actual Merger Consideration Adjustment, as applicable. Each The costs of the Parties New Accounting Firm shall bear its own expenses in connection with any such dispute, except that be borne by the fees and expenses party (either CCC or the shareholders of the Expert shall be allocated reasonably Group Companies, including the Shareholders) whose amounts, on the Financial Adjustment Notice or its Financial Certificates, as applicable (the "Proposed Numbers"), were further ---------------- from the determination of the New Accounting Firm of what the amounts should have been (the "Revised Numbers"), or equally by CCC and the Expert. All determinations by shareholders of the Expert shall be final--------------- Group Companies, conclusive and binding with respect to including the Final Closing Statement and any item or amount set forth thereinShareholders, in the absence of fraud or manifest errorevent that the Revised Numbers are equidistant between the original amounts.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. The Closing Date Payment shall be adjusted in accordance with the following procedure:
(aA) Within ninety (90) Not later than 20 days following after the Closing Date, the Buyers shall cause Buyer will prepare and deliver to be prepared and delivered to Mallinckrodt UK a written statement setting outthe Seller updated schedules as follows, in reasonable detail, a calculation each case as of (i) the close of business on the Closing Net Working CapitalDate (collectively, (ii) the “Updated Schedules”): Schedule 1.1 Contract Trial Balance Schedule 1.2 FF&E Schedule 1.3 Other Receivables Schedule 1.4 Past Due Leases Schedule 1.5 Pending Leases Schedule 1.7 Pre-Funded Leases Schedule 1.8 Prepaid Expenses Schedule 1.9 Reserve Listing Schedule 1.12 UNL Leases Schedule 1.13 Vehicle Leases Schedule 1.14 VenCore Receivables Schedule 5 Recourse Pool The Updated Schedules will be accompanied by a revised Settlement Statement, computing the Purchase Price as of close of business on the Closing Working Capital Adjustment, Date (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Revised Settlement Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(bB) After receipt of the Updated Schedules and Revised Settlement Statement, the Seller will have 15 days to review the Updated Schedules and Revised Settlement Statement. During such 15 day period, Buyer will, and will cause its representatives to, make available to Seller and its representatives on a timely basis all books, records and appropriate personnel to provide Seller and its representatives with such information regarding the Updated Schedules and Revised Settlement Statement as Seller and its representatives may reasonably request. Unless Seller delivers written notice to Buyer setting forth the specific items disputed by Seller on or prior to the 15th day after its receipt of the Updated Schedules and Revised Settlement Statement, Seller will be deemed to have accepted and agreed to the Updated Schedules and Revised Settlement Statement and such agreement will be final and binding. If Seller so notifies Buyer of its objections to the Updated Schedules and Revised Settlement Statement, Buyer and Seller will, within 30 days following such notice (the “Resolution Period”), attempt to resolve their differences.
(C) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, Buyer and Seller do not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail resolve all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and disputed items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items Updated Schedules and amounts in the Final Closing Revised Settlement Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes end of this Section 2.4. Upon the Buyers’ receipt of any Notice of DisputeResolution Period, Mallinckrodt UK then Buyer and the Buyers Seller shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international mutually select a public accounting firm that is an expert in all relevant accounting matters independent of each of Seller and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties Buyer (the “ExpertAccounting Arbitrator”), to finally resolve, ) as soon expeditiously as practicable, and all items remaining in any event dispute will be submitted to the Accounting Arbitrator by the parties, in writing, within sixty (60) 30 days after the selection of the Accounting Arbitrator. The failure by either Seller or Buyer to submit a statement regarding any items remaining in dispute within such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of 30 day period shall be deemed a waiver by such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement party of its position with respect right to each disputed issuedo so. The Expert Accounting Arbitrator shall apply the applicable terms of this Agreement and act as an arbitrator to determine only those items in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agreedispute. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the All fees and expenses relating to the work, if any, to be performed by the Accounting Arbitrator will be allocated between Buyer and Seller in the same proportion that the aggregate amount of the Expert shall be allocated reasonably disputed items so submitted to the Accounting Arbitrator that is unsuccessfully disputed by each such party (as finally determined by the ExpertAccounting Arbitrator) bears to the total amount of such disputed items so submitted. All determinations by The Accounting Arbitrator will deliver to Buyer and Seller a written determination (such determination to include a work sheet setting forth all material calculations used in arriving at such determination) of the Expert shall disputed items within 30 days of receipt of the disputed items, which determination will be final, binding and conclusive. The final, binding and conclusive Updated Schedules and binding with respect to Revised Settlement Statement, which either are agreed upon by Seller and Buyer or are delivered by the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined Accounting Arbitrator in accordance with this Section 2.4 2(c)(3), will be the “Conclusive Statement.”
(D) If the Purchase Price as of close of business on the Closing Date as indicated on the Conclusive Statement exceeds the Estimated IT Carve-Out Closing Date Payment, then within three Business Days after the Buyers parties obtain the Conclusive Statement, the Buyer shall pay such excess to Mallinckrodt UK the Seller by (i) executing and delivering to the Seller an additional Term Note with a principal amount equal to ninety-five percent (95%) of the amount in cash equal to by which the excess Net Book Value of the IT Carve-Out Pre-Closing Costs over Acquired Receivables on the Estimated IT Carve-Out Payment; and
Conclusive Statement exceeds such Net Book Value on the Settlement Statement, and (ii) if paying the IT Carve-Out Pre-Closing Costs as finally determined remainder of such excess to the Seller in accordance with this Section 2.4 are lower than cash. At the Estimated IT Carve-Out Paymentsame time, Mallinckrodt UK the Buyer shall also pay to the Buyers Seller the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Costinterest required by Section 2(e).
(eE) The Estimated R&D Lab Construction Pre-If the Closing Costs Date Payment exceeds the Purchase Price as of close of business on the Closing Date as indicated on the Conclusive Statement, then within three Business Days after the parties obtain the Conclusive Statement, the Seller shall be adjusted upwards or downwards as follows pursuant pay such excess to this Section 2.4:
the Buyer by (i) if accepting from the R&D Lab Construction PreBuyer an additional Term Note with a principal amount equal to ninety-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK five percent (95%) of the amount in cash equal to by which the excess Net Book Value of the R&D Lab Construction Pre-Closing Costs over Acquired Receivables on the Estimated R&D Lab Construction Pre-Closing Costs; and
Settlement Statement exceeds such Net Book Value on the Conclusive Statement, and (ii) if paying the R&D Lab Construction Pre-Closing Costs as finally determined remainder of such excess to the Buyer in accordance with this Section 2.4 are lower than cash. At the Estimated R&D Lab Construction Pre-Closing Costssame time, Mallinckrodt UK the Seller shall also pay to the Buyers Buyer the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costsinterest required by Section 2(e).
(fF) Notwithstanding anything in Section 2.4(d), Section 2.4(e) Any excess amount paid by the Buyer or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined Seller in accordance with Section 2.4(b)2(c)(3)(D) with respect or 2(C)(3)(E) shall be treated as an adjustment to the R&D Lab Construction Pre-Closing Costs and/or Purchase Price for all Tax purposes by the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, Seller and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing StatementBuyer.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alfa Corp)
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchasers shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Seller a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Trayport Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Trayport Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support the amounts set forth thereinsuch Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing The Revised Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and prepared in such manner as not to interfere accordance with the normal operations of the Business Accounting Principles and (y) Mallinckrodt UK shall bear this Agreement, with all of its own costs amounts reflected therein being converted to British pounds sterling in connection accordance with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSection 1.2(d).
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchasers shall provide Seller and its Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchasers reasonably requested by Seller to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses, including using reasonable best efforts to cause Purchasers’ accountants to cooperate and assist Seller, its Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Seller shall deliver to Purchasers in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Seller disagrees, (C) the bases for each such disagreement and items set forth in (D) Seller’s calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchasers, it being understood that all items Purchasers and amounts Seller shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchasers and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Seller have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve PricewaterhouseCoopers, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any PricewaterhouseCoopers is unable to serve, Purchasers and Seller shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Seller or Purchasers and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Seller and the Buyers Purchasers are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Seller shall cause its respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Seller and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchasers, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Seller shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchasers, on the one hand, and Seller, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchasers and Seller agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) (or after Purchasers and Seller receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchasers shall pay to Mallinckrodt UK Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Estimated Adjustment Amount shall exceed the final Adjustment Amount, then Seller shall pay to Purchasers an amount of cash in British pounds sterling equal to such excess;
(A) if the final Closing Cash shall exceed the Estimated Closing Cash, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Estimated Closing Cash shall exceed the final Closing Cash, then Seller shall pay to Purchasers an amount of cash in British pounds sterling equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Seller shall pay to Purchasers an amount of cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; andsuch excess;
(iiiv) (A) if the Final Purchase Price is lower than Estimated Trayport Transaction Expenses shall exceed the Estimated Purchase Price Mallinckrodt UK final Trayport Transaction Expenses, then Purchasers shall pay to Seller an amount of cash in British pounds sterling equal to such excess and (B) if the Buyers final Trayport Transaction Expenses shall exceed the Estimated Trayport Transaction Expenses, then Seller shall pay to Purchasers an amount of cash in cash British pounds sterling equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available fundsBritish pounds sterling (with amounts denominated in currencies other than British pounds sterling being converted to British pounds sterling in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchasers to Seller or by Seller to Purchasers, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Post-Closing Adjustment. (a) Within ninety Promptly after the Closing Date, and in any event not later than thirty (9030) days following the Closing Date, the Buyers Purchaser shall cause the Surviving Corporation to be prepared prepare and delivered deliver to Mallinckrodt UK the Equityholders’ Representative a written statement (the “Closing Statement”) setting outforth: (A) the Surviving Corporation’s good faith calculations (the “Surviving Corporation’s Proposed Calculations”) of (1) the amount of the Closing Cash, (2) the amount of any Company Transaction Expenses not (x) paid by the Company prior to the Effective Time, or (y) deducted in reasonable detail, a connection with the calculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing, and (i3) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) amount of the Closing Indebtedness, (iv) the Closing Cash, and (vB) the Closing Net Cash, which when considered together, results in the calculation a recalculation of the Final Purchase Price from Buyers’ viewpoint, as well as Estimated Aggregate Common Stock Merger Consideration Payable at Closing based on such amounts. Prior to and following delivery by the Buyers’ view Surviving Corporation of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and Surviving Corporation shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK provide the Equityholders’ Representative and its authorized representatives Representatives with prompt and reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth Surviving Corporation, Merger Sub and the Company, as the case may be, and any other document or information reasonably requested by the Equityholders’ Representative in order to allow the Final Closing Statement Equityholders’ Representative and its Representatives to take copies verify the accuracy of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingSurviving Corporation’s Proposed Calculations.
(b) If Mallinckrodt UK disputes any amount or item set forth in In the Final Closing Statement as calculated by event that the Buyers, Equityholders’ Representative does not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver object to the Buyers a Surviving Corporation’s Proposed Calculations by written notice, specifying in reasonable detail all points notice of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs objection (the “Notice of DisputeObjection”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is ) delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers Surviving Corporation within thirty (30) days after the Buyers receive Equityholders’ Representative’s receipt of the Closing Statement, such Notice of Dispute, Mallinckrodt UK and Objection to set forth in reasonable detail (A) the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties Equityholders’ Representative’s alternative calculations (the “ExpertEquityholders’ Representative’s Proposed Calculations”) of (i) the amount of the Closing Cash, (ii) the amount of any Company Transaction Expenses not (x) paid by the Company prior to the Effective Time, or (y) deducted in connection with the calculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing, and (iii) the amount of the Closing Indebtedness, and (B) a recalculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing based on such amounts, the recalculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing as set forth in the Surviving Corporation’s Proposed Calculations shall be deemed final and binding.
(c) If the Equityholders’ Representative delivers a Notice of Objection to the Surviving Corporation within the thirty (30) day period referred to in §2.7(b), to finally resolve, then (A) any amount of the Surviving Corporation’s proposed recalculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing that is not in dispute on the date such Notice of Objection is given shall be treated as soon as practicablefinal and binding, and in (B) any event within sixty (60) days after such reference, all unresolved points of disagreement dispute with respect to the Final Surviving Corporation’s proposed recalculation of the Estimated Aggregate Common Stock Merger Consideration Payable at Closing Statement. For purposes of (all such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position amounts with respect to each disputed issue. the calculation of the Aggregate Merger Consideration, the “Disputed Amounts”) shall be resolved as follows:
(i) The Expert Equityholders’ Representative and the Surviving Corporation shall apply the applicable terms of this Agreement and promptly endeavor in particular the defined terms set forth herein good faith to resolve the issues for dispute Disputed Amounts listed in the Notice of Objection. In the event that a written agreement determining the Disputed Amounts has not been reached within fifteen (15) Business Days after the date of receipt by the Surviving Corporation from the Equityholders’ Representative of the Notice of Objection, the Equityholders’ Representative and the Surviving Corporation shall otherwise make its determination select the Los Angeles office of a mutually acceptable and nationally recognized independent accounting firm (such firm, the “Independent Accounting Firm”) to resolve the Disputed Amounts in accordance with such procedures the provisions of this §2.7(c). The parties acknowledge that the Los Angeles office of Deloitte & Touche LLP is a mutually acceptable firm to be designated as the Parties may agree. In no event Independent Accounting Firm.
(ii) The Independent Accounting Firm shall the Expert assign a value to conduct its own review and verification of any item greater than set forth on the greatest value for such item claimed by Closing Statement and shall select either Party the Equityholders’ Representative’s Proposed Calculations of the Disputed Amounts or less than the smallest value for such item claimed by either PartySurviving Corporation’s Proposed Calculations of the Disputed Amounts or an amount in between the two.
(iii) The Equityholders’ Representative and the Surviving Corporation shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a decision in accordance with this §2.7(c), along with a statement of reasons therefor, within thirty (30) days of the submission of the Disputed Amounts to the Independent Accounting Firm or a reasonable time thereafter. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and decision of the Buyers
(i. e., not an independent review) and on the definitions included herein, and Independent Accounting Firm shall be final and binding on upon the Parties for all purposes hereunder Equityholders’ Representative, the Equityholders, Purchaser and shall not be subject to appeal or further review. Each the Surviving Corporation and the decision of the Parties Independent Accounting Firm shall bear its constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction thereover.
(iv) In the event the Equityholders’ Representative and the Surviving Corporation submit any Disputed Amounts to the Independent Accounting Firm for resolution, the Surviving Corporation and the Equityholders’ Representative (on behalf of the Equityholders) shall each pay their own costs and expenses in connection with any such dispute, except that incurred under this §2.7(c) and the fees and expenses costs of the Expert Independent Accounting Firm shall be allocated reasonably borne by the Expert. All determinations by parties as follows:
(A) if the Expert shall be final, conclusive and binding difference between the absolute value of the Equityholders’ Representative’s aggregate position with respect to the Final Disputed Amounts and the Independent Accounting Firm’s final determination with respect to the Disputed Amounts is greater than the difference between the absolute value of the Surviving Corporation’s aggregate position with respect to the Disputed Amounts and the Independent Accounting Firm’s final determination with respect to the Disputed Amounts, then the Equityholders, jointly and severally to the extent of the Post-Closing Statement Expense Reserve Funds and any item or amount set forth thereinthe Indemnification Escrow Funds, in shall be responsible for all of the absence fees and costs of fraud or manifest error.the Independent Accounting Firm;
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(iB) if the Final Purchase Price exceeds difference between the Estimated Purchase Price absolute value of the Buyers shall pay to Mallinckrodt UK the amount in cash equal Equityholders’ Representative’s aggregate position with respect to the excess Disputed Amounts and the Independent Accounting Firm’s final determination with respect to the Disputed Amounts is less than the difference between the absolute value of the Final Purchase Price over Surviving Corporation’s aggregate position with respect to the Estimated Purchase PriceDisputed Amounts and the Independent Accounting Firm’s final determination with respect to the Disputed Amounts, then the Surviving Corporation shall be responsible for all of the fees and costs of the Independent Accounting Firm; and
(iiC) if the Final Purchase Price is lower than absolute value of the Estimated Purchase Price Mallinckrodt UK shall pay Equityholders’ Representative’s aggregate position with respect to the Buyers Disputed Amounts and the amount in cash Independent Accounting Firm’s final determination with respect to the Disputed Amounts is equal to the excess difference between the absolute value of the Estimated Purchase Price over Surviving Corporation’s aggregate position with respect to the Final Purchase PriceDisputed Amounts and the Independent Accounting Firm’s final determination with respect to the Disputed Amounts, then the fees and costs of the Independent Accounting Firm shall be borne one-half by the Equityholders, jointly and severally to the extent of the Post-Closing Expense Reserve Funds and the Indemnification Escrow Funds, and one-half by the Surviving Corporation.
(d) The Estimated IT Carve-Out Payment Independent Accounting Firm shall act as an arbitrator to determine, based upon the provisions of this §2.7(d), only the Disputed Amounts and the determination of each amount of the Disputed Amounts shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
made in accordance with the procedures set forth in §2.7(a), and in no event shall the Independent Accounting Firm’s calculation of any Disputed Amount be (i) if less than the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK lesser of the amount in cash equal to claimed by either the excess of Surviving Corporation or the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
Equityholders’ Representative, or (ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower greater than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers greater of the amount in cash equal to claimed by either the excess of Surviving Corporation or the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing CostEquityholders’ Representative.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if Upon the R&D Lab Construction Pre-Closing Costs as finally determined determination, in accordance with this Section 2.4 exceeds §§2.7(b) or 2.7(d), of the Estimated R&D Lab Construction Pre-final calculations of the amounts of (1) the Closing CostsCash, (2) the Buyers shall pay to Mallinckrodt UK Company Transaction Expenses not (x) paid by the amount in cash equal Company prior to the excess of Effective Time, or (y) deducted in connection with the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess calculation of the Estimated R&D Lab Construction Pre-Aggregate Common Stock Merger Consideration Payable At Closing, and (3) the Closing Costs over Indebtedness, the R&D Lab Construction Pre-Estimated Aggregate Common Stock Merger Consideration Payable at Closing Costs.
(f) Notwithstanding anything shall be recalculated using such finally determined amounts in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if lieu of the amounts set forth used in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, Estimate and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Funds Flow Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.The term “Final
Appears in 1 contract
Post-Closing Adjustment. (a) The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing DateAudit") the books of the ------------------ Company to determine the accuracy of the information relating to the Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post- Closing Audit, CCC's Accountant shall apply the same accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Buyers Shareholders shall cause to be prepared provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the Group Closing Net Working Capital, Worth (the "Actual Closing Net Worth") or (ii) ------------------------ a different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted -------------------- EBIT" ), CCC shall promptly deliver a written notice with supporting ---- documentation (the "Financial Adjustment Notice") to the shareholders of the Group Companies, including the Shareholders, setting forth (A) the determination made by CCC's Accountant of the Actual Closing Working Capital AdjustmentNet Worth and the Actual 1997 Adjusted EBIT, (iiiB) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing Indebtednesspursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), (iv) the Closing Cashrespectively, and (vC) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Cash, which when considered together, results in Worth and the calculation of Actual Adjusted EBIT been used to determine the Final Purchase Price from Buyers’ viewpoint, need for any adjustments to the Base Merger Consideration as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinin (B) above. During The differences between the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the respective amounts set forth in (B) and (C) and the Final Closing Statement and to take copies amounts of the samecash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), provided however that (xas adjusted pursuant to Sections 2.2(c) any or 2.2(d), is referred to hereafter as the "Merger ------ Consideration Adjustment." Any increase in the Base Merger Consideration ------------------------ resulting from such access or furnishing of information Merger Consideration Adjustment shall be conducted during owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal business hours quarterly dividends, as the same may be adjusted from time to time and in such manner the ordinary course), then the number of shares of CCC Common Stock issuable as not to interfere with the normal operations part of the Business and (y) Mallinckrodt UK shall bear all Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of its own costs CCC Common Stock, if any, to be issued in connection with its review respect of the amounts set forth in Merger Consideration Adjustment shall be registered under the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK 1933 Act and approved for quotation on the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingNasdaq National Market.
(bc) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any The shareholders of the amounts and items set forth in Group Companies, including the Final Closing StatementShareholders, includingthrough the Group Representative, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after from the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any receipt of the Parties appointed by mutual agreement Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such disputedispute within such 30-day period, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if CCC shall be entitled to receive promptly pro rata from the Final Purchase Price exceeds Shareholders (which may, at CCC's sole discretion, be from the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal Pledged Assets as defined in, and subject to the excess of provisions of, Section 3.2 and/or the Final Purchase Price over the Estimated Purchase Price; and
Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC and (ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK Shareholders shall pay be entitled to receive promptly from CCC any Merger Consideration Adjustment owed to the Buyers Shareholders. If, however, the amount in cash equal Shareholders (through the Group Representative) have delivered notice of such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the excess books of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out PaymentGroup Companies including, the Buyers shall pay Surviving Corporation, the Financial Certificates and the Financial Adjustment Notice (and related information) to Mallinckrodt UK determine the amount in cash equal to the excess amount, if any, of the IT Carve-Out Pre-Closing Costs over revised Merger Consideration Adjustment (the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) Within ninety (90) days following the Closing Date, the Buyers shall cause to be prepared and delivered to Mallinckrodt UK a written statement setting out, in reasonable detail, a calculation of (i) the Closing Net Working Capital, (ii) the Closing Working Capital Adjustment, (iii) the Closing Indebtedness, (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing Statement”), together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. During the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, when and as reasonably requested, the Buyers shall, and shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary for a review by Mallinckrodt UK of the amounts set forth in the Final Closing Statement and to take copies of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoing.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Statement, Mallinckrodt UK shall deliver to the Buyers a written notice, specifying in reasonable detail all points of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any of the amounts and items set forth in the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs (the “Notice of Dispute”), it being understood that all items and amounts in the Final Closing Statement not specifically referenced as being in dispute in the Notice of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five (45) day period, it shall be conclusively presumed that the Final Closing Statement and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other with respect to the specified points of disagreement set forth in the Notice of Dispute in an effort to resolve the dispute. If any such dispute cannot be resolved by Mallinckrodt UK and the Buyers within thirty (30) days after the Buyers receive the Notice of Dispute, Mallinckrodt UK and the Buyers shall jointly refer the dispute to an international accounting firm that is an expert in all relevant accounting matters and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolve, as soon as practicable, and in any event within sixty (60) days after such reference, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement of its position with respect to each disputed issue. The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and shall be final and binding on the Parties for all purposes hereunder and shall not be subject to appeal or further review. Each of the Parties shall bear its own expenses in connection with any such dispute, except that the fees and expenses of the Expert shall be allocated reasonably by the Expert. All determinations by the Expert shall be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, in the absence of fraud or manifest error2.
(c) Based on the Closing Adjustment Amount, as determined herein above, the Estimated Purchase Price shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the Final Purchase Price exceeds the Estimated Purchase Price the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the Final Purchase Price over the Estimated Purchase Price; and
(ii) if the Final Purchase Price is lower than the Estimated Purchase Price Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.
(d) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated IT Carve-Out Payment, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, a written statement setting out a calculation of the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth therein. Mallinckrodt UK or the Buyers, as applicable, shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by wire transfer of immediately available funds, not more than ten (10) days after final determination thereof, to an account to be designated by the payee at least five (5) days prior to the due date.
Appears in 1 contract
Samples: Share Purchase Agreement
Post-Closing Adjustment. (a) Within Not later than ninety (90) days following after the Closing DateDate or such other time as is mutually agreed by the Parties, the Buyers Purchaser shall prepare or cause to be prepared prepared, and delivered deliver to Mallinckrodt UK Sellers a written revised statement setting out(the “Revised Statement”) of the Adjustment Amount (the “Revised Adjustment Amount”), in reasonable detail, a calculation of (i) the Closing Net Working CapitalCash (the “Revised Closing Cash”), (ii) the Closing Working Capital Adjustment, Indebtedness (iii) the “Revised Closing Indebtedness, ”) and any Trayport Transaction Expenses (iv) the Closing Cash, and (v) the Closing Net Cash, which when considered together, results in the calculation of the Final Purchase Price from Buyers’ viewpoint, as well as the Buyers’ view of (vi) the R&D Lab Construction Pre- Closing Costs and (vii) the IT Carve-Out Pre-Closing Costs (altogether the “Final Closing StatementRevised Trayport Transaction Expenses”), together with all related supporting schedules, calculations and documentation such reasonably detailed data appropriate to support such Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses. The Revised Statement shall be prepared in accordance with the Accounting Principles and this Agreement, with all amounts reflected therein being converted to dollars in accordance with Section 1.2(d). It is agreed that no amounts set forth therein. During on the forty-five (45) days after the date Mallinckrodt UK receives the Final Closing Revised Statement, when and as reasonably requestedincluding the Revised Adjustment Amount (or any component thereof), or the Buyers shall, and Estimated Adjustment Amount (or any component thereof) shall cause their officers, directors, employees and accountants to afford Mallinckrodt UK and its authorized representatives reasonable access to the offices, books and records necessary be adjusted in any way for a review by Mallinckrodt UK of the amounts set forth changes in the Final Closing Statement and to take copies value of the same, provided however that (x) any such access or furnishing of information shall be conducted during normal business hours and in such manner as not to interfere with the normal operations of the Business and (y) Mallinckrodt UK shall bear all of its own costs in connection with its review of the amounts set forth in the Final Closing Statement. The Buyers will charge no amount to Mallinckrodt UK for the time spent by Buyers’ officers, directors, employees, accountants or other representatives in connection with the foregoingPurchaser Common Stock.
(b) If Mallinckrodt UK disputes any amount or item set forth in the Final Closing Statement as calculated by the Buyers, not more than forty-five For thirty (4530) days after following the date Mallinckrodt UK receives delivery of the Final Closing Revised Statement, Mallinckrodt UK Purchaser shall provide Sellers and their Affiliates and their authorized representatives with reasonable access to the relevant books, records, employees and representatives of Purchaser reasonably requested by Sellers to evaluate and assess the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses, including using reasonable best efforts to cause Purchaser’s accountants to cooperate and assist Sellers, their Affiliates and representatives in evaluating the calculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses.
(c) Within thirty (30) days following receipt of the Revised Statement, Sellers shall deliver to Purchaser in writing either their (i) agreement as to the Buyers a written noticecalculation of the Revised Adjustment Amount, Revised Closing Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses or (ii) notice of dispute thereof, specifying in reasonable detail all points (A) the nature of disagreement with the Buyers’ Final Closing Statement and setting forth revised calculations for any such dispute, (B) each item of the amounts Revised Statement with which Sellers disagree, (C) the bases for each such disagreement and items set forth in (D) Sellers’ calculation of the Final Closing Statement, including, without limitation, any revision to the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs or the IT Carve-Out Pre-Closing Costs proper amount of each such disputed item (the a “Notice of DisputeDispute Notice”). During the thirty (30) days after the delivery of such dispute notice to Purchaser, it being understood that all items Purchaser and amounts Sellers shall attempt in good faith to resolve any such dispute and finally determine the Final final Adjustment Amount, Revised Closing Statement not specifically referenced as being in dispute in Cash, Revised Closing Indebtedness and Revised Trayport Transaction Expenses (if any). If, at the Notice end of Dispute shall be deemed to have been agreed upon, and shall be final, for all purposes hereof. If no Notice of Dispute is delivered by Mallinckrodt UK to the Buyers within such forty-five thirty (45) day 30)-day period, it shall be conclusively presumed that the Final Closing Statement Purchaser and thus the Final Purchase Price, the R&D Lab Construction Pre-Closing Costs and the IT Carve-Out Pre-Closing Costs and all other amounts and items set forth therein as prepared by the Buyers Sellers have been agreed upon for all purposes of this Section 2.4. Upon the Buyers’ receipt of any Notice of Dispute, Mallinckrodt UK and the Buyers shall promptly consult with each other failed to reach an agreement with respect to the specified points of disagreement set forth in final Adjustment Amount, the Notice of Dispute in an effort matter shall be submitted to resolve KPMG LLP, which shall act as arbitrator solely with respect to determining the disputedisputed items. If any KPMG LLP is unable to serve, Purchaser and Sellers shall jointly select another nationally recognized accounting firm that is not the independent auditor for either Sellers or Purchaser and is otherwise neutral and impartial to act as such dispute cannot be resolved by Mallinckrodt UK arbitrator; provided, however, that if Sellers and the Buyers Purchaser are unable to select such other accounting firm within thirty (30) days after delivery of a Dispute Notice, each of Purchaser and Sellers shall cause its respective selected nationally recognized accounting firm to select another firm meeting the Buyers receive requirements set forth above or a neutral and impartial certified public accountant with significant relevant experience to act as such arbitrator. The accounting firm or accountant so selected shall be referred to herein as the Notice “Accountant.” The Accountant shall determine the final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) in accordance with the terms and conditions of Disputethis Agreement. In making its determinations, Mallinckrodt UK the Accountant shall not assign a value to any disputed item that is greater than the highest value attributed to such item, or that is less than the lowest value attributed to such disputed item, in the Revised Statement and the Buyers Dispute Notice, respectively. The Accountant shall jointly refer the dispute deliver to an international accounting firm that is an expert in all relevant accounting matters Sellers and standards and that has no material relationship with any of the Parties appointed by mutual agreement of the Parties (the “Expert”), to finally resolvePurchaser, as soon promptly as practicable, practicable and in any event within sixty thirty (6030) days after such referenceits appointment, all unresolved points of disagreement with respect to the Final Closing Statement. For purposes of such determination by the Expert, each of Mallinckrodt UK and the Buyers shall submit to the Expert a proposed calculation of each disputed issue and a written statement report setting forth the resolution of its position with respect to each disputed issuethe final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any). The Expert shall apply the applicable terms of this Agreement and in particular the defined terms set forth herein to resolve the issues for dispute and shall otherwise make its determination in accordance with such procedures as the Parties may agree. In no event shall the Expert assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Expert’s determination shall be based solely on written submissions by Mallinckrodt UK and the Buyers
(i. e., not an independent review) and on the definitions included herein, and Such report shall be final and binding on upon the Parties for all purposes hereunder to the fullest extent permitted by applicable Law and shall not may be subject to appeal or further reviewenforced in any court having jurisdiction. Each of the Parties Purchaser and Sellers shall bear its own expenses all the fees and costs incurred by it in connection with any such disputethis arbitration, except that the all fees and expenses of relating to the Expert foregoing work by the Accountant shall be allocated reasonably borne by Purchaser, on the one hand, and Sellers, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Expert. All determinations Accountant, which proportionate allocation will also be determined by the Expert shall Accountant and be final, conclusive and binding with respect to the Final Closing Statement and any item or amount set forth therein, included in the absence of fraud or manifest errorAccountant’s written report.
(cd) Based on On the Closing fifth (5th) Business Day after Purchaser and Sellers agree to the final Adjustment Amount, as determined herein abovefinal Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) (or after Purchaser and Sellers receive notice of any final determination of the Estimated Purchase Price shall be adjusted upwards or downwards as follows final Adjustment Amount, final Closing Cash, final Closing Indebtedness and final Trayport Transaction Expenses (if any) pursuant to this the procedures set forth in Section 2.43.7(c)), then:
(i) (A) if the Final Purchase Price exceeds final Adjustment Amount shall exceed the Estimated Purchase Price the Buyers Adjustment Amount, then Purchaser shall pay to Mallinckrodt UK the Sellers an amount of cash in cash dollars equal to the such excess of the Final Purchase Price over and (B) if the Estimated Purchase Price; andAdjustment Amount shall exceed the final Adjustment Amount, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(ii) (A) if the Final Purchase Price is lower than final Closing Cash shall exceed the Estimated Purchase Price Mallinckrodt UK Closing Cash, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the Buyers Estimated Closing Cash shall exceed the final Closing Cash, then Sellers shall pay to Purchaser an amount of cash in dollars equal to such excess;
(iii) (A) if the Estimated Closing Indebtedness shall exceed the final Closing Indebtedness, then Purchaser shall pay to Sellers an amount of cash in dollars equal to such excess and (B) if the final Closing Indebtedness shall exceed the Estimated Closing Indebtedness, then Sellers shall pay to Purchaser an amount of cash equal to the excess of the Estimated Purchase Price over the Final Purchase Price.such excess;
(div) The Estimated IT Carve-Out Payment shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(iA) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds Estimated Trayport Transaction Expenses shall exceed the Estimated IT Carve-Out Paymentfinal Trayport Transaction Expenses, the Buyers then Purchaser shall pay to Mallinckrodt UK Sellers an amount of cash in dollars equal to such excess and (B) if the final Trayport Transaction Expenses shall exceed the Estimated Trayport Transaction Expenses, then Sellers shall pay to Purchaser an amount of cash in cash dollars equal to such excess; and in each of cases (i), (ii), (iii) and (iv), plus interest on such amount from the Closing Date up to but excluding the date on which such payment is made at a rate per annum equal to the excess Federal Funds Rate as of the IT Carve-Out Pre-Closing Costs over the Estimated IT Carve-Out Payment; and
(ii) if the IT Carve-Out Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated IT Carve-Out Payment, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated IT Carve-Out Payment over the IT Carve-Out Pre-Closing Cost.
(e) The Estimated R&D Lab Construction Pre-Closing Costs shall be adjusted upwards or downwards as follows pursuant to this Section 2.4:
(i) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 exceeds the Estimated R&D Lab Construction Pre-Closing Costs, the Buyers shall pay to Mallinckrodt UK the amount in cash equal to the excess of the R&D Lab Construction Pre-Closing Costs over the Estimated R&D Lab Construction Pre-Closing Costs; and
(ii) if the R&D Lab Construction Pre-Closing Costs as finally determined in accordance with this Section 2.4 are lower than the Estimated R&D Lab Construction Pre-Closing Costs, Mallinckrodt UK shall pay to the Buyers the amount in cash equal to the excess of the Estimated R&D Lab Construction Pre-Closing Costs over the R&D Lab Construction Pre-Closing Costs.
(f) Notwithstanding anything in Section 2.4(d), Section 2.4(e) or elsewhere in this Agreement to the contrary, if the amounts set forth in the Final Closing Statement (as finally determined in accordance with Section 2.4(b)) with respect to the R&D Lab Construction Pre-Closing Costs and/or the IT Carve-Out Pre-Closing Costs are based on estimates of such costs, and the finally documented costs relating thereto later differ from the amounts set forth in the Final Closing Statement, or if there are additional documented costs relating thereto not reflected in the Final Closing Statement, then Mallinckrodt UK shall provide the Buyers, promptly following its determination of any documented costs that differ from the amounts contained in the Final Closing Statement (or are additional thereto), and in any event within one hundred and eighty (180) days following the Closing Date, calculated on the basis of a written statement setting out a calculation year of three-hundred sixty (360) days and the updated R&D Lab Construction Pre-Closing Costs and/or IT Carve-Out Pre-Closing Costs, as applicable, together with all related supporting schedules, calculations and documentation reasonably appropriate to support the amounts set forth thereinactual number of days elapsed. Mallinckrodt UK or the Buyers, as applicable, Any such payment shall reimburse the other Party to the extent the documented costs so updated are higher or lower than the amounts set forth in the Final Closing Statement.
(g) Any payment required to be made under this Section 2.4 by either Mallinckrodt UK or the Buyers shall be by federal funds wire transfer of immediately available fundsdollars (with amounts denominated in currencies other than dollars being converted to dollars in accordance with Section 1.2(d)) to the account(s) of the Party entitled to receive such payment, which account(s) shall be identified by Purchaser to Sellers or by Sellers to Purchaser, as the case may be, not more less than ten two (102) days after final determination thereof, to an account to be designated by the payee at least five (5) days Business Days prior to the due datedate such payment would be due.
Appears in 1 contract
