Common use of Post-Closing Payments Clause in Contracts

Post-Closing Payments. 4.9.1 The Purchaser may perform an audit of the Closing Management Accounts at its own cost after Closing and notify the Seller if there is any objection to the Closing Management Accounts (and the calculation of Working Capital derived therefrom) within 180 days after Closing. The accounting firm conducting such audit shall be agreed between the Parties (acting reasonably), and shall be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaser, the Closing Management Accounts shall be deemed to be conclusive and binding on the Parties for the purposes of this Agreement. If the Purchaser does deliver a notice of objection to the Seller, the Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the agreed closing management accounts within fifteen (15) Business Days after the Seller's receipt of the Purchaser's notice of objection. If the Parties are unable to agree the closing management accounts within fifteen (15) Business Days after the receipt by the Seller of the notice of objection from the Purchaser, the Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the accounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to make a determination in relation to the items in dispute and determine the closing management accounts within twenty (20) Business Days after its appointment and such costs shall be borne equally between the Parties. Any closing management accounts agreed in accordance with this Clause 4.9.1 or determined by the international professional accounting firm shall be conclusive and binding on the Parties (barring manifest error) and become the agreed closing management accounts (the "Agreed Closing Management Accounts"). 4.9.2 The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts. 4.9.3 If the Working Capital is a negative number, then the Seller shall credit by telegraphic transfer or other electronic means for same day value to the Purchaser's Account an amount equal to the deficit of the Working Capital below zero as a reduction in the Purchase Price, provided that such deficit is equal to or more than US$100,000. 4.9.4 If the Working Capital is a positive number then the Purchaser shall credit by telegraphic transfer or such other means for same day value to the Seller’s Account an amount equal to the excess of the Working Capital over zero as an increase in the Purchase Price, provided that such excess is equal to or more than US$100,000. 4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made: (i) if no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, on the next Business Day thereafter; or (ii) if an objection to the Closing Management Accounts is made under Clause 4.9.1, on or before the fifth (5) Business Day after the date on which the Agreed Closing Management Accounts are determined as provided under Clause 4.9.1.

Post-Closing Payments. 4.9.1 The Purchaser may perform an audit (a) Thirty days after Buyer's fiscal quarter ending June 30, 2001 and the end of every fiscal quarter thereafter, until payment of the remaining One Million Four Hundred Thousand ($1,400,000) of the Purchase Price (subject to adjustment pursuant to Section 6.3) (the "Post Closing Management Accounts at its own cost after Closing and notify Payment") has been paid ----------- to the Seller if there is any objection in full, the Buyer shall prepare and deliver to the Closing Management Accounts Seller a cash flow statement of the Buyer (the "Quarterly Cash Flow Statement"), prepared in accordance with Schedule 1.5(a). --------------- (b) The Seller shall deliver to the Buyer within ten (10) days after receiving the Quarterly Cash Flow Statement a detailed statement describing its objections (if any) thereto (the "Quarterly Cash Flow Statement Objection Notice"). Failure of the Seller to so object to the Quarterly Cash Flow Statement shall constitute acceptance thereof. The Buyer and the calculation of Working Capital derived therefromSeller shall use reasonable efforts to resolve any such objections, but if they do not reach a final resolution within thirty (30) within 180 days after Closing. The the Buyer has received the Quarterly Cash Flow Statement Objection Notice, the Buyer and the Seller shall select an accounting firm conducting such audit shall be agreed between the Parties (acting reasonably), and shall be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaser, the Closing Management Accounts shall be deemed mutually acceptable to be conclusive and binding on the Parties for the purposes of this Agreementthem to resolve any remaining objections. If the Purchaser does deliver a notice of objection to Buyer and the Seller, the Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the agreed closing management accounts within fifteen (15) Business Days after the Seller's receipt of the Purchaser's notice of objection. If the Parties Seller are unable to agree on the closing management accounts within fifteen choice of an accounting firm, they shall select a nationally-recognized accounting firm by lot (15) Business Days after excluding their respective regular independent accounting firms). Such accounting firm shall determine whether the receipt objections raised by the Seller of the notice of objection from the Purchaser, the Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the accounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to make a determination in relation to the items in dispute and determine the closing management accounts within twenty (20) Business Days after its appointment and such costs are appropriate. The Quarterly Cash Flow Statement shall be borne equally between the Parties. Any closing management accounts agreed adjusted in accordance with this Clause 4.9.1 or determined such firm's determination and, as so adjusted, shall be the "Final Quarterly Cash Flow Statement" for that fiscal period. Such determination by the international professional such accounting firm shall be conclusive and binding on upon the Parties (barring manifest error) Buyer and become the agreed closing management accounts (the "Agreed Closing Management Accounts")Seller. 4.9.2 (c) The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts. 4.9.3 If the Working Capital is a negative number, then Buyer and the Seller shall credit by telegraphic transfer or other electronic means for same day value share the fees and expenses of such accounting firm if the use of such accounting firm becomes necessary after the Seller delivers a Quarterly Cash Flow Statement Objection Notice. (d) Subject to the Purchaser's Account terms of this Section 1.5(d), if a Quarterly Cash -------------- Flow Statement Objection Notice has not been received by the Buyer within fifteen (15) days after delivering the Quarterly Cash Flow Statement to the Seller, and the Buyer, as evidenced by the Quarterly Cash Flow Statement, is "Cash Flow Positive", as defined below, the Buyer shall on that fifteenth (15th) day, pay to the Seller by one or more cashiers or certified checks or by wire transfers of immediately available funds to an account designated by the Seller, an amount equal to twenty-five percent (25%) of any "Cash Flow Positive Amount". "Cash Flow Positive" and "Cash Flow Positive Amount" shall have the deficit of the Working Capital below zero as a reduction in the Purchase Price, provided that such deficit is equal meanings ascribed to or more than US$100,000. 4.9.4 If the Working Capital is a positive number then the Purchaser shall credit by telegraphic transfer or such other means for same day value to the Seller’s Account an amount equal to the excess of the Working Capital over zero as an increase in the Purchase Price, provided that such excess is equal to or more than US$100,000. 4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made: (i) if no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, them on the next Business Day thereafter; or (ii) if an objection to the Closing Management Accounts is made under Clause 4.9.1, on or before the fifth (5) Business Day after the date on which the Agreed Closing Management Accounts are determined as provided under Clause 4.9.1.Schedule 1.5(a). ---------------

Post-Closing Payments. 4.9.1 The (i) If the Post-Closing Adjustment Amount (as finally determined pursuant to this Section 1.3) is negative (the absolute value of such negative amount, the “Post-Closing Deficit”), then the Participating Sellers shall owe Purchaser may perform the Post-Closing Deficit (minus an audit amount equal to Purchaser’s Proportion of such Post-Closing Deficit). Payment of any Post-Closing Deficit shall come, first, from the Working Capital Escrow Fund and Purchaser and the Shareholders’ Representative shall provide a joint written instruction to the Escrow Agent to deliver an amount in cash equal to the amount of the Post-Closing Management Accounts at its own cost after Closing and notify Deficit from the Seller if there is any objection to the Closing Management Accounts (and the calculation of Working Capital derived therefromEscrow Fund. For avoidance of doubt, any recovery of any such Post-Closing Deficit shall not be subject to any of the limitations on indemnification set forth in Section 8.3. (ii) within 180 days after Closing. The accounting firm conducting If the Post-Closing Adjustment Amount (as finally determined in accordance with this Section 1.3) is positive (the absolute value of such audit shall be agreed between Post-Closing Adjustment Amount, the Parties (acting reasonably“Post-Closing Increase”), and shall be PricewaterhouseCoopersthen Purchaser shall, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaser, the Closing Management Accounts shall be deemed to be conclusive and binding on the Parties for the purposes of this Agreement. If the Purchaser does deliver a notice of objection to the Seller, the Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the agreed closing management accounts within fifteen (15) later than 10 Business Days after the Seller's receipt final determination of the Purchaser's notice of objection. If Post-Closing Adjustment Amount pursuant to this Section 1.3, pay the Parties are unable to agree the closing management accounts within fifteen Post-Closing Increase (15) Business Days after the receipt by the Seller of the notice of objection from the Purchaser, the Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the accounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to make a determination in relation to the items in dispute and determine the closing management accounts within twenty (20) Business Days after its appointment and such costs shall be borne equally between the Parties. Any closing management accounts agreed in accordance with this Clause 4.9.1 or determined by the international professional accounting firm shall be conclusive and binding on the Parties (barring manifest error) and become the agreed closing management accounts (the "Agreed Closing Management Accounts"). 4.9.2 The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts. 4.9.3 If the Working Capital is a negative number, then the Seller shall credit by telegraphic transfer or other electronic means for same day value to the Purchaser's Account minus an amount equal to the deficit Purchaser’s Proportion of the Post-Closing Increase) in respect of (1) Employee Company Options that are Vested Company Options held by Company Option Holders, to the Company for further payment to such Company Option Holders through the Company’s payroll processing system net of applicable Tax withholding and deductions and in respect of Non-Employee Company Options that are Vested Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders and (2) Company Capital Shares and Company Warrants, to the Payment Agent for further distribution to the applicable Participating Sellers, in each case, in accordance with each Participating Seller’s respective Working Capital below zero as a reduction in the Purchase Price, provided that such deficit is equal to or more than US$100,000Pro Rata Portion. 4.9.4 If the Working Capital is a positive number then the Purchaser shall credit by telegraphic transfer or such other means for same day value to the Seller’s Account an amount equal to the excess of the Working Capital over zero as an increase in the Purchase Price, provided that such excess is equal to or more than US$100,000. 4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made: (i) if no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, on the next Business Day thereafter; or (ii) if an objection to the Closing Management Accounts is made under Clause 4.9.1, on or before the fifth (5) Business Day after the date on which the Agreed Closing Management Accounts are determined as provided under Clause 4.9.1.

Post-Closing Payments. 4.9.1 The Purchaser may perform an audit (i) If the Final Cash Consideration is less than the Estimated Cash Consideration (such difference, the “Post-Closing Deficit”), then Buyer and Holdco shall deliver, and in no event later than two Business Days following the date of determination of the Post-Closing Management Accounts at its own cost after Closing and notify the Seller if there is any objection Deficit, joint written instructions to the Closing Management Accounts Escrow Agent instructing the Escrow Agent to release (and the calculation of Working Capital derived therefromA) within 180 days after Closing. The accounting firm conducting such audit shall be agreed between the Parties (acting reasonably), and shall be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaserto Buyer, the Post-Closing Management Accounts shall be deemed to be conclusive and binding on Deficit, unless the Parties for the purposes of this Agreement. If the Purchaser does deliver a notice of objection to the Seller, the Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the agreed closing management accounts within fifteen (15) Business Days after the Seller's receipt of the Purchaser's notice of objection. If the Parties are unable to agree the closing management accounts within fifteen (15) Business Days after the receipt by the Seller of the notice of objection from the Purchaser, the Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the accounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to make a determination in relation to the items in dispute and determine the closing management accounts within twenty (20) Business Days after its appointment and such costs shall be borne equally between the Parties. Any closing management accounts agreed in accordance with this Clause 4.9.1 or determined by the international professional accounting firm shall be conclusive and binding on the Parties (barring manifest error) and become the agreed closing management accounts (the "Agreed Post-Closing Management Accounts"). 4.9.2 The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts. 4.9.3 If the Working Capital is a negative number, then the Seller shall credit by telegraphic transfer or other electronic means for same day value to the Purchaser's Account an amount equal to the deficit of the Working Capital below zero as a reduction in the Purchase Price, provided that such deficit Deficit is equal to or more greater than US$100,000. 4.9.4 If the Working Capital is Adjustment Escrow Amount, in which case such joint written instructions will instruct the Escrow Agent to release the full Adjustment Escrow Amount to Buyer, and (B) to Holdco, any remaining Adjustment Escrow Funds after first distributing the Post-Closing Deficit to Buyer in accordance with Subsection (A) hereof (such remaining amount, the “Post-Closing Deficit Shortfall”), and the Sellers shall not be entitled to receive, and hereby automatically, and with no further action required on their part forever waive and discharge any rights in or to, all or a positive number then portion, as applicable, of the Purchaser shall credit by telegraphic transfer or such other means for same day Adjustment Escrow Amount with an aggregate value to the Seller’s Account an amount equal to the excess Post-Closing Deficit. If the Adjustment Escrow Amount is insufficient to cover the entire Post-Closing Deficit, then each Holder shall promptly, and in no event later than five Business Days following the date of determination of the Working Capital over zero as Post-Closing Deficit, pay such Holder’s Pro Rata Portion of the amount of the shortfall to Buyer in cash by wire transfer of immediately available funds to an increase in account designated by Buyer. Buyer may recover any such Post-Closing Deficit Shortfall by withholding or setting off against the Purchase Price, provided that such excess is equal any Earnout Payment due to or more than US$100,000be paid pursuant to Section 1.4. 4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made: (i) if no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, on the next Business Day thereafter; or (ii) if an objection If the Final Cash Consideration is greater than the Estimated Cash Consideration (such difference, the “Post-Closing Increase”), then Buyer shall promptly, and in no event later than two Business Days following the date of determination of the Post-Closing Increase, (A) pay the Post-Closing Increase to Holdco and (B) simultaneously therewith, Buyer and Holdco shall deliver joint written instructions to the Closing Management Accounts is made under Clause 4.9.1Escrow Agent instructing the Escrow Agent to release the full Adjustment Escrow Funds to Holdco, and Buyer shall not be entitled to receive, and hereby automatically, and with no further action required on its part, forever waives and discharges any rights in or before to, all of the fifth (5) Business Day after the date on which the Agreed Closing Management Accounts are determined as provided under Clause 4.9.1Adjustment Escrow Funds.

Post-Closing Payments. 4.9.1 (a) The Purchaser may perform an audit of the Closing Management Accounts at its own cost after Closing and notify the Seller if there is any objection to the Closing Management Accounts (and the calculation of Working Capital derived therefrom) within 180 days after Closing. The accounting firm conducting such audit Final Adjustment Amount shall be agreed between the Parties determined as set forth in subsections (acting reasonably), b) and shall be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG. If no such notice is given by the Purchaser, the Closing Management Accounts shall be deemed to be conclusive and binding on the Parties for the purposes (c) of this AgreementSection 2.5. If the Purchaser does deliver Final Adjustment Amount is a notice of objection positive number, then Buyer shall pay such Final Adjustment Amount to the Seller, the Parties shall use their best commercial endeavours to promptly resolve any objections raised and confirm in writing between them the agreed closing management accounts Seller or its designee within fifteen (15) five Business Days after the Seller's receipt of the Purchaser's notice of objectionfinal determination thereof. If the Parties are unable to agree the closing management accounts within fifteen (15) Business Days after the receipt by the Seller of the notice of objection from the Purchaser, the Parties shall as soon as reasonably practicable jointly appoint an international professional accounting firm other than the accounting firm who conducted the initial audit on behalf of the Purchaser but provided that such international professional accounting firm shall still be PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG, to make a determination in relation to the items in dispute and determine the closing management accounts within twenty (20) Business Days after its appointment and such costs shall be borne equally between the Parties. Any closing management accounts agreed in accordance with this Clause 4.9.1 or determined by the international professional accounting firm shall be conclusive and binding on the Parties (barring manifest error) and become the agreed closing management accounts (the "Agreed Closing Management Accounts"). 4.9.2 The Working Capital shall be derived from the Closing Management Accounts where no objection to the Closing Management Accounts is made by the Purchaser within 180 days after Closing as provided under Clause 4.9.1, or if such objection is made, it shall be derived from the Agreed Closing Management Accounts. 4.9.3 If the Working Capital Final Adjustment Amount is a negative number, then the Seller shall credit pay the absolute value of such Final Adjustment Amount to Buyer within five Business Days after the final determination thereof. Any payments required to be made by telegraphic transfer or other electronic means for same day value either party pursuant to the Purchaser's Account an amount equal to the deficit of the Working Capital below zero as a reduction in the Purchase Price, provided that such deficit is equal to or more than US$100,000. 4.9.4 If the Working Capital is a positive number then the Purchaser this Section 2.5(a) shall credit by telegraphic transfer or such other means for same day value to the Seller’s Account an amount equal to the excess of the Working Capital over zero as an increase in the Purchase Price, provided that such excess is equal to or more than US$100,000. 4.9.5 Any payment made under Clause 4.9.3 or Clause 4.9.4 shall be made: (i) if no objection be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than 90 days after the Closing Date, Buyer shall deliver to Seller (i) a statement (the “Final Adjustment Statement”) setting forth (A) the balance sheet of the Company as of the Closing Date prepared in accordance with the Accounting Principles, consistently applied, after giving effect to the Restructuring and the other transactions contemplated by this Agreement to be effected at or prior to the Closing Management Accounts is made by (the Purchaser within 180 days after “Subject Balance Sheet”) and showing Buyer’s calculation of the Closing as provided under Clause 4.9.1Statutory Value based thereon, on the next Business Day thereafter; or (ii) if an objection a written certificate of the chief financial officer of Buyer certifying that the Subject Balance Sheet was prepared in accordance with the Accounting Principles, consistently applied, and setting forth in reasonable detail Buyer’s calculation of the Final Closing Statutory Value and the Final Adjustment Amount based thereon and (iii) supporting documentation with respect to the Closing Management Accounts is made under Clause 4.9.1, calculation of the amounts set forth on or before the fifth (5) Business Day after Final Adjustment Statement. Between the date hereof and the date on which the Agreed Final Adjustment Statement is delivered pursuant to this Section 2.5(b), Seller shall provide Buyer and its Representatives with reasonable access, during normal business hours, upon reasonable advance notice to Seller, to the employees of Seller (including the chief financial officer of Seller) who are primarily responsible for the preparation of the Estimated Balance Sheet and to documentation, records and other information relating thereto to the extent reasonably necessary to facilitate Buyer’s ability to prepare the Final Adjustment Statement after the Closing Management Accounts are determined Date (including reasonable access to all work papers of the accountants who compiled or reviewed the Estimated Balance Sheet, subject to Buyer entering into a reasonable customary undertaking required by Seller’s accountants in connection therewith in form and substance reasonably acceptable to such accountants). (c) (i) Seller shall have 45 days from the date on which the Final Adjustment Statement is delivered to it to review the Final Adjustment Statement, the Subject Balance Sheet and the calculations of Closing Statutory Value and the Final Adjustment Amount based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company shall provide Seller and its Representatives with full access to the employees of Buyer and the Company (including to the Chief Financial Officer of Buyer) and to all documentation, records and other information of Buyer and the Company as provided under Clause 4.9.1Seller or any of its Representatives may reasonably request; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer or the Company.